Honorable John E. Winters, Executive Director

State Geparlmsntof Public%lfare Austin 3, Texas bar Sir: Opi.niou Ko. O-6074 Re: Tnterprstationof **residence** requirements for employees of the I;epartment of Publio ?ie?ffare

under the provisions of Section 4 (7) House Bill X~o.611, 47th Legislature, a8 amended by the Acts of the 46th Legislature. This will acknowledge receipt of your letter,which reads, ir part, 85 follows:

"Section4 (7) of I!ouse Eill 611, **A&s** of the 47th Legislature,Regular Session, as amondsd byActs of the 48th Legislature,Rewlar Session,provides in pert: 80 1

. a . . provided, however, that all employees of the ?I!epartment

shall have been residents of the State of Texas for a period of at least four (4)years next pmceding their appointment. "T% are receivingmany applications for employment from personswho havemaintained legal residence forvoting purposeswithin the State but who have been absmt frm **the** State overvarious periods of time within **the last**  four years.!
For oonveniencewe regroupyour questions as follows: 1. The character of legal residence required for employment with the State %partment of PublicWelfare?

2. J?oes

the residence statute, supra, have referenceto actual physical presencewithin the State ormay the Public Welfare apartment considerthe intent of the prospective employee in determining the nature of his residence?

**3.** ‘&en n person’s employment **has** necessitatedhis travelling over the countrywith only infrequentvisits in Texas, but at all timesHonorable John H. Winters, Page 2 O-6074

consideredTexas his legal place of residence,paid his poll tax and voted in Texas,would his intentionto return be sufficientto establish residence?

4. Would the statement of his intentionto return to Texas be sufficient to establish residence ir: the absence ofvisits, Payne&, of poll tax and voting in Texas, provided he had not claimed the right to vote in 8010s

other State? 5. Could the PublicWel~fareDepartment considerthat a minor, whose parents are legal residents of the State of Texas,has fu]fillsd the residence requirementwhen the mirror has been absent from the'State continuousl~y

attending school or working for the four year periodwith only infrequentvisits with her parents, residence **being** claimed solely on the basis that she acquired the residence of her parents.

6. If the minor had never actually lived in this Statewith her parents prior to going to sohool or accepting employment outside the State,would this make any difference in the decision?

Generally,where a statute presaribes residenceas a qualification for the enjoyment of a privilege,or the exercise of a franchise, and/orwhenever **the** terms are used In connectionwith subjects of domesticpolicy, domicile and residenceare equivalent, 19 C,J, p0 397, 28 C.J.S.pe 7.

And it is our opinion that the Legislature, in enacting this residence statute,had inmind a state public poliay, .the prevention of appointment of transientworkers in the &partment of PublicWelfare, and further intended residence to mean and be the same as domicile.

In a strict and legal sense the domicile of a person is the placewhere he has his true, fixed and permanenthome and principal establishment,and to which, whenever he is absent, he has the intention of returning, or **in** other language,the place inwhich he has his fixed habitation, ,withoutany present intection of removing therefromz Elx parte Blumer, 27 Tex. 734 (QuotingStore, Conflict of Laws), It will thus be seen that two thingsmust concur to constitutedomicile: **First,** residence;and second, the intention of making the place of residence one's home, See 16 Tex. Juris. P, 709, with cases **cited,**

While the intentionmust be constant, it is not necessary that the individualbe physically resident **continuously** at the place in order there to maintain the domiojle after it has once been acquired, actual residenoe is not indispensableto the **retaining** of a domicile once acquired3 it is retained by the mere intentionnot to ohange or adopt **another.** EcIntyre v. Chappel, 4 Tex, 167, 197.And it 1s of no oonsequenoe how short the **residence** may have beenl it is the fact of residence, coupledwith irtention that establishesthe domicile. Republlovo Young, Dallas, 464., I

Honorable John H. knters, Page 3 O-6074

The foregoing is, in our opinion, in general, the character of legal residencerequired for employmentwith the State Espartmant of Public Welfare.

i?ithregard to your seaond question, it is our opinion the residenae statute, supra, has referenoe to both an actual physical presenaewithin the State and intent. Hemust have established a domicile in Texas. TO do that, 88 stated above, he must actually reside in the State and have an intention to remain, or not to adopt another or, if aaey, to return. If he should leave Texas,a ohange of domicile or residsnoe depends on intention, or, as sometimes stated, on a dual intentionto abandon the former domicile (Texas)and to acquire another. Sec. 28 C.J,S. p. 15, 16, with cases cited. Your second question, therefore, cannot he answered oategoriaally.

Your third question in our opinion shouldbe answered in the affirmative. Temporary residence, even if long,merely for the purpose of transactingbusiness or of engaging in employment,with the intention of returning to the originalhome, is not suffioient for change of domicile. 28 C. J. S., pa 19, with oases cited, The place of exercise of the election franchise is important evidenoe on the question of domicileg it may be even the highest widenoe, and has been oalled the most important of all the fonsal acts to be scrutinized in ascertaining a person's domicile. See oases cited, 28 C.J. S. pm 46. His intention to return and not adopt another domicilewould be sufficient to establish residenoe.

With reference to your fourth question the person in question at all times consideredTexas his home, though he did not pay his poll tax orvote here, nor visit here, but did not claim the right to vote **in** some other State.

An establisheddomicile is not lostmerely by temporary absence therefrom, or temporary residence elsewhere,however long continued, even for a period of years. A person intending to retain his old domicile, **may** reside almost indefinitely out of the loous of such domiaile. In re Curtis. 178 N.Y.S. 286, 288. Furthermore, if an individual is shonn to have bean domiciledat a partiaulerplace, he will be deemed to have retained that domicileunless it is shown affirmatfvely that he acquired a residence elsewhere. SheppardV. Cassiday, 20 Tex. 24, 29, 70 &II.Dec. 372.

If his statement of intentionto return to Texas was honest, and not made for the purpose of creatingwidenoe in his favor after he has become appreciative of the consequencesof a change of domicile and not made to aoncealanother real intention, in our opinion itwould establishhis domioile as still **in** Texas, provided he at all times intended to return to Texas and had not establisheda domicile elsewhere.- .

Honomble John H.Winters, Page 4 **O-6074**

IVerestate the facts involved inyour fifth question, A minor whose parents are legal residents of 1exas, cleims residence in T.¶x** solely on the basis that she acquired the residence of her parents, Thisminor has been absent from the State continuouslyattending school or working for the fouryear periodwith only infrequentvisits with her parents.

Generally B person who is under the power and authority of another possesses 110right to choose a domicile. Thus the domicile of a minor child is always that of the father, and necessarily changeswith any changeof the father'sdomicile. 9 R.C.C. pm 547 #lO. Cases &ted 15 Tex, Juris, pm 715. And a studentwho goes to a university, school or college is deemed to have retainedhis fanner domicileunless he shows an intentionto make a change to the place in whioh the institution is located. See 9 R.C.L. p. 552, #15. Inview of the foregoingwe are of the opinion that the minor in question has fulfilled the residence requirements.

With reference to your last question, it is our opinion that as a miror's domicile is that of the father"sB minor has complied **with** the residence statute, supra, though theminor has never actually lived with the parents in Texas before going to school orwork:ir:g outside ,the Stats, if the parentshave been domiciled in this State for four years next proceeding the appointment.

We have assumed in the latter two questions that the parents were not divoroed. Ke have further essumed in all questions that the residence or domicileupon which the question is based has been established for the required four years next preceeding the appoi&ment.

Trusting this satisfactorilyanswersyour inquiry,we are Yours very truly
ATTORNEY GENERAL OF T&XAS

By s/BenjaminWoodall

BenjaminWoodall Assistant By e/EltonM. Cyder, Jr.

Elton M. Ryder Jr.

APPROVED SEP. 13, 1944 s,/fXao. P. Blackbum (ACTIKG)ATTORNEY GEhwAT, OF TEXAS Approved Opinion Committee tiy R~!dB Chairmen -.,