Honorable W. Lee O'Daniel

Governor of Texas Austin, Texas
Dear Sir: Opinion NO. 

### o-3382
Re: Citizenship of B. D. Battle
Your letter ofApril 8, 

### 1941,requests the opinion of this departmentupon the question whether, under the material submittedwlth your request,Mr. Battle is a resident citizen of the State ofTexas.. Your request does not ask that we give this opinion upon the information submittedwith Tour letter alone, but asks that we base It on these facts and other facts which you may find."

State citizenship is governedby the provisions of theUnited States Constitution,Amendment 14, Section 1:

"Allpersons born or naturallzed in the United States, and subject to the jurlsdlctlon thereof, are citizens of the United States and of the State whereFn they reside." Assuming Mr. Battle to be a citizen of the United States, his State citizenship dependsupon his residence. The term "reside"has reference to the "domicile" or "legal residence" of the person, observingthe distinctionbetween actual residence and domicile statedby our Supreme Court in the case of Pecos, etc.Ry Co. vs. Thompson, 

### 106Tex. 

### 460, 167 S. W. 801:

"Residencemeans living in a particular locality,but domioilemeans living,inthat localitywith the ,intentto make It a flxed and permanent home.Residence simply requires bodily presence, as an inhabltant in a given place, while domicilerequires bodily presence in that place and also one's intention to make it one's domicile.". ,

Honorable W. Lee O'Danlel, Page 2 (O-3382)

Two things must ooncur to constitute "domicile:" First, residence; and second, the intention ofmaking the place of residence one's home. 

### 15Tex. Jur. 709. Thus a domicile once acquired is not lost simplyby the rcquisition of a new residence; the acquisltion'ofthe new residencemust be accompaniedby the intentlon to make It one's fixed and permanenthome. Hardy vs.DeLeon 

### 5 Tex. 211; Holliman vs. Peebles, 1 Tex. 

### 673.

Since the fact of residence plus the factor of intention are necessary to the determination of the question of domtcile, it is obvious that the issue with respect to each particular case can be resolved only in view of all the facts of the particular case. The solution of the problem will not dependupon any single circumstance or group of circumstancesbut upon all the circumstancestaken in connectionwith each other. In instanceswhere the elements of residence and intention gathered from conduct are ambiguous or uncertain, It becomes necessary to make a minute inquiry into the hablts, character,pursuits, social and domestic relations,business and political affairs of the person. 19 Corpus Juris p. 

### 435. In the case of a singleperson, ordinarlly It Is a fair presumption of fact and law that the place at which a person actually lives in his dommTcile, such presumptionbeing of course rebuttable. Russell's Heirs v3. Randolph, 11 Tex. 

### 460; 15Tex. Jur. 718; 19 Corpus Juris 431. In the caseofamarried man, the presumption is that his domicile is where his wife resides,but this presumptionwill likewiseyield to a contrary showing of the facts. Fidelity and Deposit Company of Maryland vs. First Natlonal Bank, 113 3. W. (2d) 

### 622;Stranton vs. Hall 90 S. W. (2d) 865; Hennessey va. Campbell 32 3. W. (2d) 390; Devereaux vs.Rowe 293 S. W. 

### 207; 17Am. Jur. p. 

### 639; 9R. C. L. pp. 557-558.

With your letteryou subaFt the followingmaterial: 1. Affidavit of B. D. Battle in which he certifies that in 1932 he did come into and did become a permanentresident of Longview, Gregg County, Texas; that he obtainedby reclproclty from the Texas Board of PublicAccountants a certificate to practice his profession of accounting In Texas; that In 1932 he was appointedAssistant CountyAuditor of Gregg County and served as such untll October 1, 1939; thatHonorable W. Lee O'Daniel, Page'3 (O-3382)

since October 1, 1939, 'hehas,continued to reside' and practicehis profession in LongvIew, Texas. :' z /~1 ,: :, 2. Receipt for American Legion dues for 1941, to Post No. 140, Longview, Texas (paida-24-40).

Letter fromR Wyche, ~dountgAuditor, Longview,&xas to Senator'J% Hill dat,ed April 5, 1941 recommending co&Yrmati.on ofMr. Batile, statingMr. B,attie was his assistant from 1932 to 1939; that since 1939Mr. Battle has conducted,anaccounting office in Longview; and expressinghis opinion ofMr. Battle's'qualificatlonato be StateAuditor.

4. Letter from J. C. Barton, Vice President,and J. W. McDavid, Cashier, First National Bank; Longview,Texas,, datedApril 5',1941, stating' their opinion ofMr. Battle's character and ability, and that since' December 14, 1933, he has been a customer of the bank and,maFntainedan active checking account; that he practiceshis profession in Longview. 5. Letter from Floyd Covingt~on, Assistant Manager, Longview Chamber of Commerce, to Senator Joe Hill, recommending Mr. Battle and stating that he has been an active member of the localChamber of Commerce for many years.

6. Certificateby Mann Fuller, Tax Assessor-Collector,Gregg County,Texas, datedApril 3, 1941, stating that B. D. Battle has been a legalresident and qualified voter of Gregg County, Texas, since 1933.~

7. Certificateby Sheriff of Gregg County, Texas, that he has summoned'Mr.Battle for jury servicebetween 1934 and 1940. 8. Poll tax receipt for 1940, dated l,-31-41,

issued to "B.D. Battle, 203 East College,LongvFew,,Texas" by Mann Fuller, Assessor-Collector ofTaxes,~ Gregg"County,Texas. 9. Three commissions to Mr. Battle'as Notary Public in and for Gregg County,Texas, for the terms ending June 1, 1937,June 1, 1939, and June 1, 1941, respectlvelg.Honorable W. Lee O~'Danle1, Page 4 (O-3382)

10. Declaration by Buford D. Battle of intention to stud 15, 5 law, filed with the Supreme Court of Texas December 193 , in which he states his permanent address to be Longview, Texas.

While the foregoing facts are not fully developed, standing alone they indicate thatMr. Battle is a resident citizen of the State ofTexas. However, we are in receipt of the following information contained in a letter to this department from Senator Joe Hill:

"1

. Buford D. Battle and wife are living together as man and wife.

"2

. The latestCity Directory of the City of Shreveport, Louisiana, carries listing 'Battle,Buford D., Certified PublicAccountant, 552 Jordan Street, Telephone 4003, residence 257 Rutherford, Telephone 75920.'

“3. The listing In January 1st TelephoneDirectory of the City of Shreveport, Louisiana, gives his office at 257 Rutherford, Telephone No. 71531.

“‘4

. I have a gelegram from the Sheriff of Shreveport,Louisiana, datedApril 4 as follows: 'BufordD. Battle signed 1939 poll books. poll books for 1940.' Act 374, 1940, cancelllng signing (sgd.) J. H. Flournoy, Sheriff.

“5. I have a telegram from the Tax Assessor in Shreveport,Louisiana, datedApril 4, 1941, sent at 8% AM as follows: 'B.D. Battle llsted in January 1stTelephone Directory as being an accountant at two fifty-sevenRutherford Street. Mrs. Battle signed application for homestead exemptlon in this office onApril second nineteen forty-one, she being record owner of the home.' (Sgd.): A. G. Hammett, Tax Assessor. i "I am informed that Mr. Battle has a room which he occupies at Longview,Texas, and that he maintains an office there as an Accountant. I am also advised that he has paid a poll tax In Gregg County,Texas."_ . .

HonorableW. Lee O'Daniel, Page 5 (O-3382)

The opinion of the Attorney General can be given on questions of law only. Disputed questions of fact, or mixed questions of law and fact cannotbe authoritatively decidedby theAttorney General. 6 Corpus Juris. p. 811. The weight of evidence and the credibility of witnesses are not questions to be addressed to or decided by the Attorney General. 6 Corpus Jur. p. 812, Note 7%.

It is apparent from what has been stated above that the facts with reference to Mr. Battle's citizenship are disputed. Since this department lacks the authority to decide such disputed issues of fact, or mixed questions of fact and law, we regret that we cannot give you an opinion upon the question presented in your letter.
Yours very truly, ATTORNEY GENERAL OF TEXAS

BY /s/R. W. Fairchild

R. W. Fairchild Assistant RWF:ej :mjs APPROVED AKI 17, 1941/d,y;;~y,",~;pAttorney General
APPROVED OPINION COMMITTEE BY /s/ BWB CHAIRMAN