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 in a federal 

correctional institution in 

Texas are Texas residents 

for purposes of college 

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 of college tuition. We will first address 

ourselves to the status of inmates who were not Texas domiciliaries 

prior to their incarceration. 

Section 54.051 of the 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 18 years 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 of the statute. 

In the United States Supreme Court’s recent decision in Vlandis v. 

Kline, 412 U.S. 441 (1973). the Court struck down a Connecticut statute 

which in certain instances created an irrebuttable presumption of nonresidency. The statute provided that if the legal address of a married 

student was outside the state at the time of admission, or if the legal 

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

address of a 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, on the basis of a 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 of nonresidency with regard to prisoners, section 54.052 of 

the Education Code, in combination with a number of court decisions, 

appears to have that effect. 

Since section 54. 052 defines “residence” as “domicile, ” and 

since the manner of determining domicile is not specified in any Texas 

statute, we must rely on judicial construction. An early opinion, 

Hardy v. DeLeon, 5 Tex. 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 by banishment, arrest, 

or imprisonment, the antecedent domicile of the party 

remains. &, at 235. 

Other cases which~have considered various classes of physically 

detained or legally disabled persons have adhered to this rule. The 

removal of an insane person to a different county for institutionalization, 

for example, is not voluntary and cannot therefore constitute a change 

of domicile. 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 of diversity jurisdiction and venue. 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). 

In the latter case, the Court stated: 

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

It appears clear that an otherwise non-citizen of 

a state does not acquire a domicile, and hence 

citizenship, in a 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 of the rule is to create 

an irrebuttable presumption of nonresidency with respect to all persons 

whose preincarceration domicile was elsewhere. The Court of Appeals 

for the Sixth Circuit, recognizing the logical and constitutional difficulties 

in the operation of such a rule, recently concluded that the question of a 

prisoner’s domicile required a factual determination that could not be 

made by the facile application of an irrebuttable presumption. 

In that 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 of hostility 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 to live in Ohio. The Court 

noted a number of situations in which a person’s compelled residence in 

a particular jurisdiction does not prevent his becoming domiciled therein. 

In each of these situations, the Court observed, the individual was not 

precluded from showing that he had developed the intention to be domiciled 

at the place to which 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 to him by making the presumption 

thathe has retained his former domicile an irreblttable 

one. Id. at. 1124. 

- 

In view of the clear trend of Texas and Fifth Circuit cases toward 

an irrebuttable presumption rule, we would be obliged to disregard 

the rationale of Stifel were it not for the “spectre of unconstitutionality” 

raised “by approving the application of an irrebuttable presumption of 

fact to a particular class of citizens. ” g, at 1125. For not only do 

the unusual conditions of Stifel, but other circumstances as well, demonstrate 

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

situations in which a presumption of nonresidence might not be true 

in fact. Federal prisoners, for example, may be permitted some 

choice of the particular prison facility in which they will be incarcerated. 

g, at 1119. firthermore, “the establishment of an apparently permanent 

residence in the state of imprisonment by the prisoner’s immediate 

family” would constitute some evidence of his 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 of proving the requisite intent, we cannot conclude 

that he may never demonstrate this intent as a matter of law. 

It is well settled that, where possible, a statute should be construed 

so as to avoid constitutional conflict. State v. City of Austin, 331 S. 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 

of nonresidence would raise the “spectre of unconstitutionality, ” we 

interpret section 54.052, and the various court decisions which have 

considered the question of a 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 of the 

prisoner’s intent to remain in Texas after his release. 

Exceptions to the domicile test in determining residency for 

purposes of college tuition are specified in other portions of section 

54 of the Education Code. One of these, the exception for “military 

personnel, ” section 54. 058, is necessarily inapplicable to prisoners. 

Others, such as the exception for “dependents of military personnel” 

stationed in Texas, section 54.058, the exception for the spouse and 

children of an employee of an “institution of higher education, ” section 

54.059 and the exception for the spouse of a “resident of Texas, 

classified as such under this chapter at the time of marriage and at the 

time the nonresident registers, ” section 54.056, would seem to be 

available to few, if any, prisoners. 

Under the terms of section 54.052(d), a person “who has come 

from outside Texas” may be classified as a “resident student” without 

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

regard to domicile, provided he has been “gainfully employed in Texas 

for a 12 month 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 . . . ” 

18 U.S. C. section 4122(b), it is doubtful that individuals who work in 

prison can be said to be “gainfully employed. ” 

In Sapp v. United States, 227 F. 2d 280, 281 (5th Cir. 19551, the 

Court of Appeals held that federal prisoners may not be considered 

employees of the United States for purposes of the Federal Tort Claims 

Act. Prisoners would also seem not to qualify 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). 

In addition, 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. In summary, since it is doubtful 

that he is qualified for one of the 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. 

In the case of individuals who were domiciliaries of Texas prior 

to their 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. 2519 
The 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 of college 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 

p. 2520