### Ausms~. TRXA~ 78711

March 20, 1975

The Honorable F. H. McDowell President East Texas State University Commerce, Texas 75420 Opinion No. H- 559 Re: Whether persons incarcerated ina federal correctional institution in Texas are Texas residents for purposes ofcollege tuition. Dear President McDowell:

You have requested our opinion regarding whether persons incarcerated in a federal correctional institution in Texas are Texas residents for purposes ofcollege tuition. We will first address ourselves to the status ofinmates who were not Texas domiciliaries prior to their incarceration.

Section 54.051 ofthe Texas Education Code prescribes a tuition rate for resident students of $4 per semester credit hour, but not less than $50 per semester, and for nonresident students a rate of $40 per semester credit hour. An individual above the age of 18years is classified as a “resident” if he has “resided in” Texas for a 12-month period prior to registration. Sections 54.052(e) and 54.054, Tex. Educ. Code; Attorney General Opinion H-82(1973). “Resided in” is defined by the statute as “domiciled in. ” Exceptions to this general test for determining residency, discussed below, are detailed in other portions ofthe statute.

Inthe United States Supreme Court’s recent decision inVlandis v. Kline, 412 U.S. 441 (1973). the Court struck down a Connecticut statute which in certain instances created an irrebuttable presumption ofnonresidency. The statute provided that if the legal address ofa married student was outside the state at the time ofadmission, or ifthe legal

p. 2515The Honorable F.H. McDowell page 2 (H-559)

address ofa single student was outside the state during the year preceding admission, such student remained a nonresident for tuition purposes so long as he remained a student in Connecticut. The Supreme Court held that the statute contravened the Due Process Clause of the fourteenth amendment because it denied a person the opportunity to present evidence that he is a resident, onthe basis ofa permanent irrebuttable presumption which was not necessarily true in fact.

The significance of the Vlandis decision for the present inquiry is that, while no Texas statute in itself creates an irrebuttable presumption ofnonresidency with regard toprisoners, section 54.052 of the Education Code, in combination with a number ofcourt decisions, appears tohave that effect.

Since section 54. 052 defines “residence” as “domicile, ” and since the manner ofdetermining domicile is not specified in any Texas statute, we must rely onjudicial construction. An early opinion, Hardy v. DeLeon, 5Tex. 211(1849).cited Story’s Conflict of Laws for the proposition that:

. . . residence in a place, to produce a change in domicile, must be voluntary. If, therefore, it be by constraint or involuntary, as bybanishment, arrest, or imprisonment, the antecedent domicile of the party remains. &, at 235. Other cases which~have considered various classes ofphysically detained or legally disabled persons have adhered tothis rule. The removal ofan insane person to a different county for institutionalization, for example, is not voluntary and cannot therefore constitute a change ofdomicile. Owens v. Stovall, 64 S.W. 2d 360, 362 (Tex. Civ. App. --Waco 1933, writ ref’d). Federal cases have reached the same conclusion, at least for purposes ofdiversity jurisdiction andvenue. See,- Ellinburg v. Connett, 457 F. 2d 240 (5th Cir. 1972); Dreyer v. JGt, 349 F. Supp. 452 (S.D. Tex. 1972), aff’d. 479 F. 2d 1044 (5th Cir. 1973). Inthe latter case, the Court stated:

p. 2516The Honorable F.H. McDowell page 3 (H-559)

Itappears clear that an otherwise non-citizen of a state does not acquire a domicile, and hence citizenship, ina state merely because he happens to be incarcerated in that state. &, at 465. Although most courts have not expressed the prisoner domicile rule in such terms, it is apparent that the effect ofthe rule is to create an irrebuttable presumption ofnonresidency with respect to all persons whose preincarceration domicile was elsewhere. The Court ofAppeals for the Sixth Circuit, recognizing the logical and constitutional difficulties in the operation of such a rule, recently concluded that the question ofa prisoner’s domicile required afactual determination that could not be made by the facile application ofan irrebuttable presumption.

Inthat case, Stifel v. Hopkins, 477 F. 2d 1116(6th Cir. 1973), the prisoner’s well-publicized murder trial in Ohio had aroused a great deal ofhostility against him there. He was sentenced to serve his term at a federal facility in Pennsylvania, and he had declared publicly and repeatedly that he never intended to return tolive inOhio. The Court noted a number of situations inwhich a person’s compelled residence in a particular jurisdiction does notprevent his becoming domiciled therein. In each ofthese situations, the Court observed, the individual was not precluded from showing that he had developed the intention to be domiciled at the place towhich he had been forced to remove. The same opportunity should be afforded the prisoner:

No good reason appears for applying a contrary per se rule tohim by making the presumption thathe has retained his former domicile an irreblttable one. Id. at. 1124. - Inview ofthe clear trend of Texas and Fifth Circuit cases toward an irrebuttable presumption rule, we would be obliged to disregard the rationale ofStifel were it not for the “spectre ofunconstitutionality” raised “by approving the application ofan irrebuttable presumption of fact toa particular class ofcitizens. ” g, at 1125. For not only do the unusual conditions ofStifel, but other circumstances as well, demonstrate

p. 2517The Honorable F. H. McDowell page 4 (H-559)

situations in which a presumption ofnonresidence might not be true infact. Federal prisoners, for example, may be permitted some choice ofthe particular prison facility in which they will be incarcerated. g, at 1119. firthermore, “the establishment ofan apparently permanent residence inthe state ofimprisonment by the prisoner’s immediate family” would constitute some evidence ofhis intent to remain there. g. , at 1128 (concurring opinion). Although a prisoner’s physical compulsion is an important factor in determining domicile, and although the prisoner has the burden ofproving the requisite intent, we cannot conclude that he may never demonstrate this intent as a matter oflaw.

Itis well settled that, where possible, a statute should be construed so as to avoid constitutional conflict. State v. City ofAustin, 331S.W. 2d 737 (Tex. Sup. 1960); Southern Pine Ltimber Co. v. Newton County Water Supply District, 325 S.W. 2d 724 (Tex. Civ. App. --Beaumont 1959, writ ref’d, n.r. e.). Since we believe that an irrebuttable presumption ofnonresidence would raise the “spectre ofunconstitutionality, ” we interpret section 54.052, and thevarious court decisions which have considered the question ofa prisoner’s domicile, to create a rebuttable presumption that a person retains his preincarceration domicile. The presumption may be overcome only by a sufficient demonstration ofthe prisoner’s intent to remain in Texas after his release.

Exceptions to the domicile test in determining residency for purposes ofcollege tuition are specified in other portions of section 54 ofthe Education Code. One ofthese, the exception for “military personnel, ” section 54. 058, is necessarily inapplicable to prisoners. Others, such as the exception for “dependents ofmilitary personnel” stationed in Texas, section 54.058, the exception for the spouse and children ofan employee ofan “institution ofhigher education, ” section 54.059 and the exception for the spouse ofa “resident of Texas, classified as such under this chapter at thetime ofmarriage and at the time the nonresident registers, ” section 54.056, would seem tobe available to few, ifany, prisoners.

Under the terms ofsection 54.052(d), a person “who has come from outside Texas” may be classified as a “resident student” without

p. 2518The Honorable F.H. McDowell page 5 (H-5591

regard to domicile, provided he has been “gainfully employed in Texas for a 12month period immediately preceding registration in an educational institution. ” Although the Federal Prison Industries Corporation is required by statute to ‘I.

. . provide employment for all physically fit inmates in the United States penal and correctional institutions
. . .” 18U.S. C. section 4122(b), itis doubtful that individuals who work in prison can be said to be “gainfully employed. ”

InSapp v. United States, 227 F. 2d 280, 281 (5th Cir. 19551, the Court ofAppeals held that federal prisoners may not be considered employees ofthe United States for purposes ofthe Federal Tort Claims Act. Prisoners would also seem not toqualify as persons “gainfully employed” under any criteria established by Texas law. See, %. , Gibson v. Gillette Motor Transport, Inc., 138 S.W. 2d 29mex. Civ. APP.. --Eastland 1940, writ ref’d); Great Southern Life Insurance Co. v. Johnson, 25 S.W. 2d 1093 (Tex. Comm. App. 1930); Rose v. Clutter, 271 S.W. 890 (Tex. Comm. App. 1925).

Inaddition, the “gainfully employed” exception was probably written into the statute in order to insure that an individual, before he became eligible for resident tuition rates, would contribute to the state economy for a substantial period through sales taxes and purchasing. We therefore believe that the term “gainfully employed” was not meant to be applied to prisoners. Insummary, since it is doubtful that he is qualified for one ofthe special statutory exceptions described above, a prisoner in Texas who was not a Texas domiciliary prior to incarceration, may demonstrate the fact of Texas residence for purposes of college tuition only by an affirmative showing that he intends to remain in Texas after his release.

Inthe case ofindividuals who were domiciliaries of Texas prior totheir imprisonment, we perceive no problem. Whether the presumption that a person retains his preincarceration domicile be viewed as rebuttable or irrebuttable, these persons must be deemed Texas residents for purposes of college tuition.

p. 2519The Honorable F. H. McDowell page 6 (H-559)

SUMMARY Persons who 

### are incarcerated in a federal correctional institution in Texas and whose preincarceration domicile was in Texas are Texas residents for purposes ofcollege tuition. Those persons whose preincarceration domicile was not in Texas may demonstrate Texas residence only by showing that they intend to remain in Texas after their release. Very truly yours,

Attorney General of Texas
APPROVED:

Lti

, KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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