JIM MATTOX Attorney General

Suprm CourtBulldlno P.0. Box 11548 Auetln. TX. 7671% 2S4S 5121475-2501 Tblax 91011)74-1387 lekopler 512147502ea

714Jackson. Sulte 700 OaNae.TX. 7S2024508 2141742-0944

4S24Albert* Ave..suits IS0 ElPIso, TX. 7ea52793 SlYSM4S4

,..+I Texes. SuIta 700 Ho”eml. l-Y..77w2-3111 712n235SS6

806 Broadway. Suite 312 L”bbc.ck,TX. 79401-3478 ew-747.523S

4306 N.Tenth. Suite S MeAllen, TX. 78501.1685 512lSS24.547

MO Main.fla.?a.Suite 4M) sari Antonio. TX. 78X5.2797 WX225-41Ql

An EqualOpportunitYI Alflrm4We A&on Employer 

# The Attorney General ofTexas_

Ocmber 22, 1985

Eonorable Lloyd Crlm chairman CommitteeonLabor ,md Employment

Relations TexanHouseof Reprcsentativea P. 0. Box2910 Austin. Tutaa 78715!) Opinion lo. St-367

Re: Resldeucy status of a student whose parent is assigned out of state by the United States Public Eealth Service

Dear Representative Cries:

You advise us I:hat a commissionedofficer of the United States Public Bealtb Service has contacted you for :clarificatlon by this office of the Texas residency requirements for purposes of resident tuition at state institutions of higher education. The Public Health Service officer has ‘been aasigued to duty lu Maryland since 1982. We

. uuderetand that both before andafter her entry into the Public Bealth Service, and until,,L982. the officer had resided for manyyears in Galveston, Texas. A state university has classified the officer's daughter aa a nonre:3!ldent student for tuition purposes.
The Texan Educ:a.tioaCode makesa distinction between residents and nonresidents of the state in prescribing the rates of tuition for students registerin: at the state's institutions of higher education. Educ

. Code 154.051. The code specifies that for tuition purposes "residence" meana"dcmaicile." Id. 154.052(a). Anindividual whois a dependentand vhose family is domiciled In another state is classified
as a nonresident student. Id. 554.052(c). The issue in question ie whetherTexas is thqzdomicilcf the Public Health Service officer who
was assigned to duty in Maryland in 1982and involves fact questions which we cannot c;~c:egorically answer in the opinion process. We conclude, however. that for tuition purposes a Public Bealth Service officer does not lcse A domicile **or** acquire a nsv domicile solely by
reason of the fact xbat the officer is involuntarily transferred to or atationed in line o:iduty lo a place outside of Tekaa.

Section 54.053 of the Education Codeprovides that each institution required to charge A nonresident tuition fee is subject to the rules. regulations. and interpretations issued by the Coordinating Board, Texas College andUniversity System,for the administration of the code's nonresident tuition provisiona. The Coordinating Board's

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rules And regulations for &aterm.iningresidence statul, pursuant to Title 3 of the Ta.6 EducationCode, provide the,folloving:

(d) Legal rec$dence of peraou in ailita~ service. A person in militmy eervice is presumed to maintain during his or **her** entire' period of active aswice th'asamelegal residence whichwas in effect At 

### t'hlc 

### time of entering military service. A person statioued in s **et.te** o* military service is presmed not to est8blish a leg81 residence ia that **state** becAuse his or her presence is not voluntary but under military orders. It is possible for **A member**  of the mi1it.v service to abandon the douicfle of original entry into the service and to select another, but to show establishr.ent **of** a neu domicile during t'hetern of active service, there muat be clear tutd unequivocal proof of such intsrlt. An extended period of sewice alone is

**not** sufficient. The purchase of residential property is not c~uclusivs evidence unless coupled with other f8cts fndicating an intent to put down roots in the cosunmityand to reside there after termination of ml.l.itary service. Evidence which will ks considsrc:d,in determining this requisite Intent includes, but is not limited to a substantial investment In a residence and the claiming of A hosestead exemptionthereon, registration to **vote.** and voting in local elections, **regiatrAtiO0** of 811 Automobilein **Te%Ae** andpAyment of personal propwrty tares thereon, obtaining a TWCSt3driver's :Licenae. maintaining checking
**8CCOUIlt.S** , **SAViUgll ACCOUUtLI.**  and safety deposit boxes in Texasbanks, existence of wills or other legal docusents fndicating residence in Texas. changeof home-of-record Anddesignation of Texas
as the plAce of ILeg. residence **for** incomet8% purposes on mili~xry personnel records, business trensActions or a:ftivities not normally engAgedin by military per6conel. nembershipin professional
or other state arganizations. and marriage to a resident of Texas. Purchase of property during terminal years of military service preceding retir-t gsnsrally is given greater weight than A similar purchase uade prior **to** such terminal period.

19T.A.C. 121.24(d).

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### WnorrblrLlqd Crirr-haa 3 (JM-367)

Dnlilu tha ti@t **which ir**  uproaaly **cruted** by atatuta that 

### pormitr **cortdu** dlitAry 

### perronnoland **their** dapsndAntr uho **aro ckreified**  **es uonrrridmtr**  **to pay**  roaidont **tuition** at **Qxer**
**univoraitior**
**, the**  **procqlticn of**  la@ roaidencs Aud daricila of A 

### pore08 im mfliteq l oMk0,

M l tatod in **the above**  ruler **and** 

### royletionr, **h8r** hem 

### developed by tba court& kctioo 54.058(b) of **the** Eduution Coda up~,aaaly Authoriroa ths p8ymant 

### of teaident tuition by **officere end** anliated peraonuel of 

### theArq, ArmyReaeT(re, Army National Gourd. **Nr** IlatiouAl Guard, Tex~a State **Guerd, Nr**  **Force, Nr**  **Force Reeerve.**  1807~ H8vy **Remera,** Urina Corps. **Xariua** Corp. Reaercte, CoAat **Guerd,** 01’Cosat **Guard** Reserve, 

### l aaigned **to duty**  in TUAO, Andtheir apouaea,kndchildrm, without regard to the length 

### of tfme thAt 

### thq hAvebeen waigned to duty 

### orrsaided within the atAte. It la vell 

### l

ettled that the 

### l xprsaa snumration of AparticulAr thing in A l t8tute is t8ntawur.t to Auexvrsas excluaio~ of 811othera. E% parte UcIver, 586 S.Y.2d 851, 856 (Tax. Grim. App. 1979); Peterson r CAlvert. 473 S.U.2d 314:, 317 (Tar. Civ. App. - Austin 1971. writ

‘s Carp v. Tex~a **ts,ate** Doard 

### of Nxaminerr in Optometry S.U.2d 639 (Tu. 1967;.642 ( - Dallu 1966). 

### l ff’d 412 S.W.id %

,,.‘zot& zL.1 Opinion V-150252). While **AU** officer in thexited St&em Public Health Service la excluded from **the** statutory right to **pay** resident tuition granted by section 54.058(b), ue believe that exclusion under tbAt statute does not determine the question before us.
The TUAO statute definea “residence” AI “domicile,” but the mAnner

### of determining dtndclle la not specified by statute, 

### And we muat rely on judicial construction. 

### Except where specified by statute. the courta how dsveloned the concept 

### of “domicile” for v8rioua~purposea. **In** Pewa 6 D.T: Ry. Co. v. Thompson.167S.W. 801. 803 (Tex. 1914). the?&Aa SupremaCourt defined domicile folloviBg 1Angu.ge: In the

‘Residence’ meActs living in 8 p8rticul.r lOC.lity, but ‘domicile’ means living in thAt loc8Iity with the 

### intent to m6keit 

### A fixed end permanenthome. Rcaidcncs simply reqnirsa bodily preaencs aa an :LnhAbltantin 

### A given place. while dcmicils requlr~eabodily presence in that plAce. and8160an inl:ention to makeit one’s domicile.

The TUAS SupremsCourt II:LSO has orated thet “volition, intention, and Action Are 811 elamenta to be considered in determining

. . . permanentresidence or do&::tle.” Mlla v. Bartlett, 377S.W.2d 636, 637 (Ta. 1964). Although it largely dependa**on** ths present intention of the individuA1. domicile is not determined br intention Alone. See Oweua**V. stoPAils**  64S.V.:ld 360, 362 (Tax. **CiV:** App. - WACO 1933,vrit ref’d). The concurring opinion In Stifel v. Dopkina, 477 F.2d 1116, 1127 (6th Cir. 1973). states that “[tlhs tvo fundamental

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iionorablo Lloyd Criaa - Page eb (JM-367)

coualdarations in astabli&ing domicile for purposee of state citlreuahip are residence ilr **the** etate and intention to remain there permaneutly.”

As reflected by the Coordinating I)oard’a rulea and regulatioua for datemining residence el:a.tu&.it hae loug been established by the courta that persona in military l exxice are presumed to maintain durtng their entire period of active l ervicc the samalegal residence **that** was in effect at the tims of enterlue dlitarv service. In ” ~~~~~~~, ~~~ ~~~~ Gallagher v. Gallagher, 215 8.W. 516, 518 (Tex. Clv. App. - San Antonio 1919,IIO**vrit).** the court stated:

Ordiuarily, **it** is a presumption of lav that where a persou ac,tually lives is his domicile, such presumption IB!~ course being rebuttable; but
uo such presumpttimcould arise In the case of a soldier In active service, who has DOchoice of daoicile. but muimtordinarily cling to his domicile of origlm.: ?rdlnarlly. au act of r-al to e certain locu:!lou; coupled with **the** intent to make a permaueot residence there, right be sufficient to fix a domicile, but that is because the r-al is voluntarily made,vbich could not
occur in the case of a soldier in active service.
The Texas SuprameCourt, III CommercialCredit Corporation v. Smith, 187S.W.Zd 363, 366 (Tax. 1345). reiterated that presumption:

A soldier or sailor does uot acquire a uav domicile merely frown being atatioued at a particular place in liue of duty. His domicile remaia~~the same ss that which he had when he entered the service, unless he showsa changeby proof of clear **anti** unequivocal 

### intention.

See also Stlfel v. Eopklua. I-, Kinsel v. Pickens. 25F.Supp. 455. ,456. Tex. 1938) and T&S cases cited therein; Wilson v. Wilson, 189S.W.2d 212 (Tu. Civ. &P. - Fort Worth 1945,nowrit). Attorney General Opin.ion S-95 (1953) discusses residency requirements for resident ‘xition In Texas. In **that** opinloo, this office stated:

In the absence **of a**  claar intent to abandonhis domicile in the state from **whence** he cameand to establfsh a uawdfnnicile in the state in vhich he serve*, a person ill the military service does not acquire a dom%cil#! in the latter state.

p. 1684Eoaorable Lloyd Cries - Page 5 (JE-367)

See also **Attorney** General Opinion O-1459 (quotlug from Conference Opinion No. 2971, dated Jamary 10. 1936, **Attorney** General’s Reports 1934-1936.at 114. directed to Dr. H.P. Benedict concerning residency requufreuents for army 0ff:ksra for tuition purposes). Conference Opinion No. 2977expressedi.h.8 opinion **that** unless ananay officer had
somereason to changehis douicile, which would have to be coupled with both facts andintentic~u..his domicile would be that of his legal residence at the tiue he enmred the anay.
Weare oat avare of amycase in which the court dealt expressly vith the Issue of the doulc:lle of a Public Health Service officer while serving on assigned duty outside the state of the officer’s domicile on original entry lute the Public Esalth Service. It is our opinion, however, that a court would find that the aauepresumptionof legal residence and domicile which applies to persona in military service also applies to offj.cers of the Public Health Service. Ordinarily, the United States Public Eealth Service is a civlllan service in the Departuent of Eeelth and Euuan Services. **It** is. however, part of the armedforces **of** the United States and a military service whenincorporated into the armedforces by executive order of the President in time of war or an emergency proclaimed by the President. 42U.S.C. 1217. With respect to active service performed by commissionedofficers of ,thePublic Eealth Service In time of war, while on detail for dutywi1:bthe Army,Navy, Air **Force,** Marine Corps,
or Coast Guard, or while thl!Service is part of the military forces of the United States pursuant 1:~~ executive order of the President, Public

. Health Service officers **arc** entitled to many of the rights and prlvllegee provided by fedwal law for caiaaioned officers of the Army. 42U.S.C. 1213(a). Public Health Service offlcers detailed for dutywith the Army. Air Force, Navy. or Coast Guardare subject to the laws for the governmentof ldreservice to whichthey are detailed. 42 U.S.C. 1215(a). ThePreeida:ntprescribes regulations with respect to the appointment, promotion, retirement. termination of commiaeion, titles, pay, uniforms. alloanncea. and discipline of the commissioned corps of the Public Bealtb Service. 42 U.S.C. 1216(a). Federal statutes expressly consider active service of coaaaissionedofficers of the Public Health Service 1:obe active **ailitary** semice for specific purposes. **Active** service of commissioned officers of the Public Eealth Service is deemedto be active military service in the armed forces of the United States; for the purposes of lavs administered by the Veterans’ Administration and for purposes of all rights, privileges, immmitiea
, and b’enefits provided under the Soldiers’ b Sailors’ Civil Relief **Act** of 1940. 42 U.S.C. 1213(d), (e). See Wannerv. Glen Ellen Corporation, 373 F.Supp. 983 (Vt. 1974). For purposes of the program of militaq medical benefits provided for

_ _ . - membersof the uniformed services and their dependents, “uniformed services” expressly meansthe armedforces and the Commissioned Corps of the National Oceanic6AtmosphericAdmlnlstration andof the Public

p. 1685Eonorable Lloyd Cries - Pego 6 (JM-367)

Eeelth Service. 10 U.S.C. 11072(l). **A member**  of the uniformad eervlcea whoia on active ducjrio entitled to udiul and dental care in eu9fac+lity of anyuuiformed service. 10U.8.C. 11074(a).

TheEighth Cfrcuic Court of Appeela baa stated:

We are conviuced that the relevant couditious of service in the Public Eealth Service are very similar to those io the armed forces and demonstrate an equally apeclel relationship and need for discipline.

For example, t,hePBS is designated as one of the ‘uniformad aerrricas’ along with the armed forces and the Comiaaioned Corps of the EnvironmentalScitmceServices Administration. 10 U.S.C. 51072(1970). The PBS is organiaed along military lines. each officer grade having a statutorily stated ‘military rank equivalent. 42 U.S.C. 1207 (19i’CI). Regulations specify that failure to follow out orders of auperlor officers till result in iliaciplinary action. 42 C.F.R. 1f21.261-84.(19?3:. In addition, PFiSofficers are assigned to actiw duty statue and are subject to recall to duty during any period of leave. 42 C.F.R. 5121.88 - 91,(1973). These similaritlaa to military service ~.l.luatrate how the concern voiced in [the] Peres [cclse] regarding the effect of tort suits ondiscipllne and internal atkucture apply with equal force 1x1the Public Eealth Setvice.
Alaxander v. United States, 500F.2d 1, 4 (8th Cir. 1974). See also, Levin v. United States. 403F.Supp. 99. 103 (Mass. 1975). In Levin v. United States, vhich is a :suit against the governmentfor service connectedinjury to a Public: Eaalth Servfce officer, the federal court stated:

No less thanthe Id.litary, this uniformedservice.

specially creeted by the sovereign, ia out of the normalstreamof t:hec- law. The sameunfairness vould occur in applying ‘the lav of the place’ to P.E.S, officers, who have no more control over theL:r duty stations than military
men.
Id. at 103.
- For purposes of Texa#. resident tuition. no state or federal statute expressly determinellthe domicile of an officer of the Public -.

p. 1686Eonorable Lloyd **Criss** - Page!7 (JM-367)

Eealth Service who involuntarily is assigned by tha Public Ilealth Service to duty outside of Texas. Thecourt in Lavin v. United States concluded that “there is ok reasonable way. in lav or in logic. to distinguieh the position ol the Public Eaalth Service officer from that of the military **man**for purposes of tort suits.” Id. It is our opinion that a court also would not distinguish the posiclon of the Public Eealth Service off1c:e.r from that of the military officer for purposes of domicile and, if asked, would find that the positions of both create a presumption t.b.atsuchpersons, whentransferred to and involuutarily assigned to duty in a state, ere not presumedto have established a legal residewe in the state where their presence Is involuntary.
Such a presumption, however. maynot be true in fact and la rebuttable by clear andunequivocal proof that the person intended to abandonthe domicile of original entry into the service andto select another domicile. SeeAworney General Opiuion R-559 (1975). Intention is an ensen= cooalderation in determining domicile, and the solution to eachpartiel:ler cese **must**dependon all the facts end circuuatancea which tend l:o support or to negate an intention to establish or to abandona domicile. Domicile clearly involves issues of fact, and this office is not equipped to make such factual determinations in its opintm process.

SUMHARP

A court wouli, probably not distinguish the position of a Public Realth Service officer from that of a military officer for purposes of domicile but vould rather find that the positions of both create a presumption that such persons, whentransferred to and involuntarily assigned to duty in a state, are presumednot to establish a legal residence in that state whentheir presence there is lnvol.untary. The presumption is rebuttable by fa;,ts that prove a clear and unequivocal intention to establish a new domicile during active servtce. 

# Very

ruly your 

# s h

;, JIM HATTOX Attorney General of Texas

TOM GRlZR First Assistant Attorney General

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### Honorable Lloyd Criss - Paga 8 (JM-367)

DAVID0. RIC8ARD8 Rxecut~veAsaiatent Attorney General

ROBBRT&UT Special Aasiatant Attorney C~eneral .\ RICgGILPIN Chairman.Opinion Comaittee Preparedby NancySutton Assistant Attorney General

APPROVED: OPINIONCOWnITTEE

Rick Gllpin. Chairman Colln Carl SusanGarrison Ton9Guillory Jim~oe~linger Jennifer Bigga NancySutton SarahWoelk

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