JIM MATTOX 

Attorney General 

Suprm Court Bulldlno 

P. 0. Box 11548 

Auetln. TX. 7671% 2S4S 

5121475-2501 

Tblax 91011)74-1387 

lekopler 512147502ea 

714 Jackson. Sulte 700 

OaNae. TX. 7S2024508 

2141742-0944 

4S24 Albert* Ave.. suits IS0 

El PIso, 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 Equal OpportunitYI 

Alflrm4We A&on Employer 

The Attorney General of Texas_ 

Ocmber 22, 1985 

Eonorable Lloyd Crlm 

chairman 

Committee on Labor ,md 

Employment Relations 

Texan House of Reprcsentativea 

P. 0. Box 2910 

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 commissioned officer 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 and after her entry into the Public Bealth 

Service, and until,,L982. the officer had resided for many years 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.tioa Code makes a 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). An individual who is a 

dependent and vhose family is domiciled In another state is classified 

as a nonresident student. Id. 554.052(c). The issue in question ie 

whether Texas is thqz domicilcf the Public Health Service officer who 

was assigned to duty in Maryland in 1982 and 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:i duty lo a place outside of Tekaa. 

Section 54.053 of the Education Code provides 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 and University System, for the administration of 

the code's nonresident tuition provisiona. The Coordinating Board's 

p. 1681 
BouorAble Lloyd Crisa - Page! 2 (JM-367) 

rules And regulations for &aterm.ining residence statul, pursuant to 

Title 3 of the Ta.6 Education Code, 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'a same legal residence which was 

in effect At t'hlc time of entering military 

service. A per son 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'he tern 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 cosunmity and 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 exemption thereon, registration to vote. and voting in local elections, 

regiatrAtiO0 of 811 Automobile in Te%Ae and pAyment 

of personal propwrty tares thereon, obtaining a 

TWCSt3 driver's :Licenae. maintaining checking 

8CCOUIlt.S , SAViUgll ACCOUUtLI. and safety deposit 

boxes in Texas banks, existence of wills or other 

legal docusents fndicating residence in Texas. 

change of home-of-record And designation of Texas 

as the plAce of ILeg. residence for income t8% 

purposes on mili~xry personnel records, business 

trensActions or a:ftivities not normally engAged in 

by military per6conel. nembership in 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. 

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

p. 1682 
Wnorrblr Llqd Crirr - haa 3 (JM-367) 

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

pormitr cortdu dlitAry perronnol and 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 oMk 0, M l ta to d 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 the Arq, Army ReaeT(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, And their apouaea ,knd childrm, without regard to the length of 

tfme thAt thq hAve been waigned to duty or rsaided within the atAte. 

It la vell l ettled that the l xprsaa snumration of A particulAr thing 

in A l t8tute is t8ntawur.t to Au exvrsas excluaio~ of 811 othera. 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. 167 S.W. 801. 

803 (Tex. 1914). the?&Aa Suprema Court 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 m6ke it A fixed end 

permanent home. Rcaidcncs simply reqnirsa bodily 

preaencs aa an :LnhAbltant in A given place. while 

dcmicils requlr~ea bodily presence in that plAce. 

and 8160 an inl:ention to make it one’s domicile. 

The TUAS Suprems Court II:LSO has orated thet “volition, intention, and 

Action Are 811 elamenta to be considered in determining . . . permanent residence or do&::tle.” Mlla v. Bartlett, 377 S.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 64 S.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 

p. 1683 
, 

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 milita r y l exxice are presumed to maintain 

durtng their entire period of active l ervicc the sama legal 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 presumpttim could arise In the case of a 

soldier In active service, who has DO choice of 

daoicile. but muimt ordinarily 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 Suprame Court, III Commercial Credit Corporation v. Smith, 

187 S.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 shows a change by 

proof of clear anti unequivocal intention. 

See also Stlfel v. Eopklua. I-, Kinsel v. Pickens. 25 F.Supp. 455. 

,456. Tex. 1938) and T&S cases cited therein; Wilson v. Wilson, 

189 S.W.2d 212 (Tu. Civ. &P. - Fort Worth 1945, no writ). 

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 abandon his 

domicile in the state from whence he came and to 

establfsh a uaw dfnnicile in the state in vhich he 

serve*, a person ill the military service does not 

acquire a dom%cil#! in the latter state. 

p. 1684 
Eoaorable 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. 2977 expressed i.h.8 opinion that unless an anay officer had 

some reason to change his douicile, which would have to be coupled 

with both facts and intentic~u.. his domicile would be that of his legal 

residence at the tiue he enmred the anay. 

We are oat avare of amy case 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 aaue presumption of 

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 armed forces of the United States and a military 

service when incorporated into the armed forces by executive order of 

the President in time of war or an emergency proclaimed by the 

President. 42 U.S.C. 1217. With respect to active service performed 

by commissioned officers of ,the Public Eealth Service In time of war, 

while on detail for duty wi1:b the 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. 42 U.S.C. 1213(a). Public Health Service offlcers detailed for 

duty with the Army. Air Force, Navy. or Coast Guard are subject to the 

laws for the government of ldre service to which they are detailed. 42 

U.S.C. 1215(a). The Preeida:nt prescribes 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 coaaaissioned officers of 

the Public Health Service 1:o be active ailitary semice for specific 

purposes. Active service of commissioned officers of the Public 

Eealth Service is deemed to 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 

Wanner v. Glen Ellen Corporation, 373 F.Supp. 983 (Vt. 1974). For 

purposes _ _ of the program of militaq medical benefits provided for . - 

members of the uniformed services and their dependents, “uniformed 

services” expressly means the armed forces and the Commissioned Corps 

of the National Oceanic 6 Atmospheric Admlnlstration and of the Public 

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

Eeelth Service. 10 U.S.C. 11072(l). A member of the uniformad 

eervlcea who ia on active ducjr io entitled to udiul and dental care 

in eu9 fac+lity of any uuiformed service. 10 U.8.C. 11074(a). 

The Eighth 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,he PBS is designated as one of 

the ‘uniformad aerrricas’ along with the armed 

forces and the Comiaaioned Corps of the 

Environmental Scitmce Services 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, PFiS officers 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 1x1 the Public Eealth Setvice. 

Alaxander v. United States, 500 F.2d 1, 4 (8th Cir. 1974). See also, 

Levin v. United States. 403 F.Supp. 99. 103 (Mass. 1975). In Levin v. 

United States, vhich is a :suit against the government for service 

connected injury to a Public: Eaalth Servfce officer, the federal court 

stated: 

No less than the Id.litary, this uniformed service. 

specially creeted by the sovereign, ia out of the 

normal stream of t:he c- law. The same unfairness 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 determinell the domicile of an officer of the Public 

-. 

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

Eealth Service who involuntarily is assigned by tha Public Ilealth 

Service to duty outside of Texas. The court 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.at such persons , when transferred to and 

involuutarily assigned to duty in a state, ere not presumed to have 

established a legal residewe in the state where their presence Is 

involuntary. 

Such a presumption, however. may not be true in fact and la 

rebuttable by clear and unequivocal proof that the person intended to 

abandon the domicile of original entry into the service and to select 

another domicile. See Aworney General Opiuion R-559 (1975). 

Intention is an ensen= cooalderation in determining domicile, and 

the solution to each partiel:ler cese must depend on all the facts end 

circuuatancea which tend l:o support or to negate an intention to 

establish or to abandon a 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, 

when transferred to and involuntarily assigned to 

duty in a state, are presumed not to establish a 

legal residence in that state when their 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 

JIM 

;, 

HATTOX 

h 

Attorney General of Texas 

TOM GRlZR 

First Assistant Attorney General 

p. 1687 
Honorable Lloyd Criss - Paga 8 (JM-367) 

DAVID 0. RIC8ARD8 

Rxecut~ve Asaiatent Attorney General 

ROBBRT&UT 

Special Aasiatant Attorney C~eneral 

.\ 

RICg GILPIN 

Chairman. Opinion Comaittee 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COWnITTEE 

Rick Gllpin. Chairman 

Colln Carl 

Susan Garrison 

Ton9 Guillory 

Jim ~oe~linger 

Jennifer Bigga 

Nancy Sutton 

Sarah Woelk 

p. 1688