HE~TTQRNEY GENERAL -XAS

HonorableDoug Crouch DistrictAttorney Tarrant County Fort Worth, Texas

Dear Mr. Crouch: OpinionNo. c-712 Re: In the interpretationof the meaning of the term "nonresident", as same is used in Art. 6687b, Vernon's civil Statutes, Sec. 3, paragraph 3, is there a presumption, rebuttableor otherwise, that a member of the armed forces of the United States,who has been required by his military duties to reside in the State of Texas for a period of more than 90 days, iis no longera "nonresident"?

In your recent letter requesting the opinion of this office concerning the above captioned inquiry,you state the following:
"In recentmonths there has arisen in Tarrant County, a question of lawwhich affects all of the police, prosecution and judicial agencies. The question involves the roper construction to be placed on the re uisites ing to the necessity of an indiv dual who d-or ve9 of Art. 6%87b pertainhicle to be licensedbr the State of Texas. More sneclffcallv. the question involves the interpretationof the exemptionpro-* visions of Par, 3, Set, 3, Art. 6687b as applied to persons who are members of the localmilitary establishment,Carswell Air Force Base in Fort Worth, Texas,.

"It seems that a custom has developedby which a person who is a member of the military establishmentis con-

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sidered to be a,resident of the State of Texas after he has resided in this state for a period of 90 days, and that after such time,he is not exempt from the licensing requirements of the State of Texas even though he may hold a valid operator's license issued by his home state. The rule of thumb has apparently been enforcedwithout regard to whether the soldier ismarried or single or whether he resides on a military reservation or elsewhere."

You thereafterask the following question:
"In the interpretationof themeaning of the term 'nonresident",as the term is used in Art. 6687b, V.A. T.S., Sec. 3, Par.,Q, is there a presumption, rebumle or otherwise, that a member of the Armed Forces of the United Stateswho has been requiredby his military duties to reside in the State of Texas for a period of more than 90 days, is no longer a 'nonresident'?" We have concluded that a negative answer must be given to the questionposed.

Paragraph 3, Section 3 of the Article 6687b, Vernonls Civil Statutes,makes the following exemption:

"A nonresidentwho is at least sixteen (16) years of age and who has in his immediatepossession a valid operator's license issued to him in his home Statemay operate,!a

motor vehicle in this State only as an operator e . . . Section 1 (p) of the statute merely defines the term "nonresident"as used therein as sident of this State." "Everypersonwho is not a reThe statute fails to give any definition of themeaning of "Resident,"

In determining themeaning of such terms as used in the particular statute,we must examine the context in which they are employed in that the termshave no fixed, exactmeaning in the law. They may have a variety of meanings, depending upon the context inwhich they are employedas well a~st'hesubjectmatter and purposes involved. 25 Am.Jur.2d 7, Domlcil, 4; SwitzerlandGen. Ins. Co. v. Gulf Ins, Co., 213 S.W.2d 161Sec. il$X,E'.'.App-

IgYtl, error dism.);~Hughesv. IllinoisPublic authorities tit a ., 2 Ill,2d 374, 1.18 !ltiE,2d 14 (1954), and e . In view of the context in which the terms "resident" and "non-resident"are employed in the vehfele licensing statute9

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we have concluded that the terms shouldbe construed in their natural and usual sense, as distinguished from a referring to the concept of a "domicil" "mere temporary residence." A "nonresident" is referring to one whose domicil is in his "home" state,and a "resident" is one whose domicil is in Texas, as distinguished from having a mere temporary residence in Texas. The statute expressly states that the "nonresident"has an "operator'slicense issued to him in his home state." Hence, the term "resident"is used synonymouslym mcil". 25 Am.Jur.2d P-10, Domicil, Sets. 6 and 7.

Under the facts submitted,we find no statutoryauthority to support the existence of any legalpresumption that a serviceman required to reside in the state for a period of ninety days or more is no longer a the statute. Therefore, "nonresident"within the meaning of the question is controlledby the general law and common law decisionsapp1icable thereto.

Virtually all of the authorities, not only $n Texas but elsewhere,hold that the law is settled that a,person in the military service is presumed to retain his domicil in the state fromwhich he was"lnducted. The presumption is rebuttable and continues only unti$ such tlme'ashe effectivelyabandons it and establishesa new domicil elsewhere. 21 A.L.R.2d 1163, 1180, Sec. 13; 25 Am.Jur.2d 29-30, Domicil, Sec. 39; Jones v. Jones, 176 S.W.2d 784 (Tex.Civ.App.1943);Wilson v. W3%on, ltrm.2d 212 (Tex.Civ.App.1945);pippin v.~ Pipp$n, 193 S W 2d 236 (Tex. Civ.App. 1946); Lewis v. Lewis,m S W 2
. e d 277 (Tex.Civ.App.1949); Klingler v. Klingler, 254 S W.2d 817 (Tex.Civ.App.1953);Postle v. 08 e, W 2d 633 (Tex.Civ.App.1955).

. * The general rule dealingwith the question of residence in the sense of domicil is summarized in 21 Tex.Jur.2d 60-74, Domicil, and at Sec. 9, pg. 69, the lawwith respect to servicepersonnel is stated as follows:

"Althoughthe fact that one is a soldier or sailor does not deprivehim of the right to change his residence or domicil and acquire a new one, he does not acquire a new onemerely by virtue of being stationedat a particularplace in the line of duty. His domicil remains the same as that which he had when he entered the service,unless he shows a change by proof of clear and unequivocal intention. F'urthermore, the ordinarypresumption that the place where a person actually lives is his domicil does not arise in the case of a ioldier in active service. This spe-

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,.,*Honorable Doug Crouch,page 4 (C-712)

cial rule isbased on the fact that a soldier's removal to another state is not voluntary, and his physicalpresence is likewisenot necessarilyvoluntary, for he moves in pursuance to military orders." It is abundantly clear from the above cited texts and authorities that no hard and fast rule can be formulated with respect to the serviceman'sdomicil or residence status. Each casemust be decided upon the peculiar factspresented with reference to objective evidence to support the serviceman's intention. Normally,his mere residence, togetherwith family, on a military installation is insufficient to show a domicilwithin the State.

It is therefore our opinion that: 1. The term "resident"as used in Article 6687b, V.C.S.,means "domicil"and the term "nonresident"as used in the statute refers to one who has his "domicil" elsewhere than in the State of Texas;

2. MO legal presumption, rebuttable or otherwise, exists in Texas that a member of the armed forces of,the Wnited States, requiredby his military duties to live in Texas for a period ofmore than ninety days, is no longer a nonresident,as that term is used in Section 3, paragraph 3 of Article 6687b;

3. There is a rebuttablepresumption that such a person in the military service retainedhis domicil in the State fromwhich he was inducteduntil such time R.She is shownby clear snd WEquivoCal proof to have effectivelyabandoned it and establisheda domicfl elsewhere, SUMMARY The term "resident"as used in Article 6687b, V.C,S., means "domicil"and the term "nonresident"as used in the statute refers to one who has his "domicil" elsewhere than in the State of Texas; No legalpresumption, rebuttable or otherwise, exists in Texas that a member of the armed forces of the United States, requiredby his military duties to live in Texas for a period of more than ninety days, is no longera nonresident as that term is used in Section 3> paragraph 3 of Article 66&b;

There is a rebuttablepresumption that such a person in the military service retainedhis domicil in the State from which he was inducteduntil such time as he is shownby clear and unequivocalproof to have effectivelyabandoned it and
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establisheda domicil elsewhere. Yours very truly, Waggoner Carr Attorney General

By:

APPROVED: OPINIONCOMMITTEE W. V. Geppert, Chairman Philllp Crawford w. 0. Schultz Ralph Rash Gordon Cass

REVIEWED FOR THE ATTORNEY GENERAL By: T. B. Wright

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