Honorable John E. Winters, Executive Director 

State Geparlmsnt of Public %lfare 

Austin 3, Texas 

bar Sir: Opi.niou Ko. O-6074 

Re: Tnterprstation of 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: 

"Section 4 (7) of I!ouse Eill 611, A&s of the 47th 

Legislature, Regular Session, as amondsd by Acts 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 receiving many applications for employment from 

persons who have maintained legal residence for voting 

purposes within the State but who have been absmt frm 

the State over various periods of time within the last 

four years.! 

For oonvenience we regroup your questions as follows: 

1. The character of legal residence required for employment 

with the State %partment of Public Welfare? 

2. J?oes the residence statute, supra, have reference to actual 

physical presence within the State or may the Public Welfare apartment 

consider the intent of the prospective employee in determining the nature 

of his residence? 

3. ‘&en n person’s employment has necessitated his travelling 

over the country with only infrequent visits in Texas, but at all times 
Honorable John H. Winters, Page 2 O-6074 

considered Texas his legal place of residence, paid his poll tax and 

voted in Texas, would his intention to return be sufficient to establish 

residence? 

4. Would the statement of his intention to return to Texas be 

sufficient to establish residence ir: the absence of visits, Payne&, of 

poll tax and voting in Texas, provided he had not claimed the right to 

vote in 8010s other State? 

5. Could the Public Wel~fare Department consider that a minor, 

whose parents are legal residents of the State of Texas, has fu]fillsd 

the residence requirement when the mirror has been absent from the'State 

continuousl~y attending school or working for the four year period with 

only infrequent visits 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 State with 

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 residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, and/or whenever the terms are used In connection with subjects 

of domestic policy, domicile and residence are 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 in mind a state public poliay, .the prevention of 

appointment of transient workers in the &partment of Public Welfare, 

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 

place where he has his true, fixed and permanent home and principal 

establishment, and to which, whenever he is absent, he has the intention of returning, or in other language, the place in which he has his 

fixed habitation, ,without any present intection of removing therefromz 

Elx parte Blumer, 27 Tex. 734 (Quoting Store, Conflict of Laws), It 

will thus be seen that two things must concur to constitute domicile: 

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 intention must be constant, it is not necessary that 

the individual be physically resident continuously at the place in order 

there to maintain the domiojle after it has once been acquired, actual 

residenoe is not indispensable to the retaining of a domicile once 

acquired3 it is retained by the mere intention not 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, coupled with irtention that establishes the domicile. 

Republlo vo Young, Dallas, 464. 
, I 

Honorable John H. knters, Page 3 O-6074 

The foregoing is, in our opinion, in general, the character 

of legal residence required for employment with the State Espartmant of 

Public Welfare. 

i?ith regard to your seaond question, it is our opinion the 

residenae statute, supra, has referenoe to both an actual physical 

presenae within the State and intent. He must 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 

intention to 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 should be answered in the 

affirmative. Temporary residence, even if long, merely for the purpose 

of transacting business or of engaging in employment, with the intention 

of returning to the original home, 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 domicile would be sufficient to establish residenoe. 

With reference to your fourth question the person in question 

at all times considered Texas his home, though he did not pay his poll 

tax or vote here, nor visit here, but did not claim the right to vote 

in some other State. 

An established domicile is not lost merely 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 domiciled at a partiauler place, he will 

be deemed to have retained that domicile unless it is shown affirmatfvely that he acquired a residence elsewhere. Sheppard V. Cassiday, 20 

Tex. 24, 29, 70 &II. Dec. 372. 

If his statement of intention to return to Texas was honest, 

and not made for the purpose of creating widenoe in his favor after he 

has become appreciative of the consequences of a change of domicile and 

not made to aonceal another real intention, in our opinion it would 

establish his domioile as still in Texas, provided he at all times intended to return to Texas and had not established a domicile elsewhere. 
- . 

Honomble John H. Winters, Page 4 O-6074 

IVe restate the facts involved in your 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, 

This minor has been absent from the State continuously attending school 

or working for the four year period with only infrequent visits with 

her parents. 

Generally B person who is under the power and authority of 

another possesses 110 right to choose a domicile. Thus the domicile of a 

minor child is always that of the father, and necessarily changes with 

any change of the father's domicile. 

9 R.C.C. pm 547 #lO. 

Cases &ted 15 Tex, Juris, pm 715. 

And a student who goes to a university, school or 

college is deemed to have retained his fanner domicile unless he shows 

an intention to make a change to the place in whioh the institution is 

located. See 9 R.C.L. p. 552, #15. In view of the foregoing we 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"s B minor has complied with 

the residence statute, supra, though the minor has never actually lived 

with the parents in Texas before going to school or work:ir:g outside ,the 

Stats, if the parents have 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 domicile upon which the question is based has been established for the required four years next preceeding the appoi&ment. 

Trusting this satisfactorily answers your inquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF T&XAS 

By s/Benjamin Woodall 

Benjamin Woodall 

Assistant 

By e/Elton M. 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 -.,