Ron. tier P. Rainey, President 

The lbiversity of Texas 

Austin, Texas 

DsarMr.Raiasyr Opinion X0. O-1579 

Re:.Legal residence of iminor who 

has been plaosd in his mother's custody. 

,M moaiwd your lstter of Ootobsr 6, 1939, followed by your lstter 

dated Novzsabar 3, 1939, inwhioh you request our opinion oaths following 

question: 

"When a tinor’s parents am divoroed and ha is placed in the oustody of 

his mother, does his legal residsnoe follow that of his mother, who takes 

him to another state with the father's acquieaoeaoe?" 

ktiole 2664o;Vernon's Revissd Civil Statutes of lkxas, provides 

iB port PS follow81 

“A non-residsnt student is hereby defined to be,a studbst of less than 

bW&y4Be (21) years of age, living amy from hi8 family,and whose fsmily resides in another state or whoa? family has resided within the state 

for a period of tinis less than twslvo (12) months priory to'the date of 

registration, or a studeat of tweztty-sne (21) years of age or over who 

resides out of the state or wlm has resided within the Stats for a pariod 

of less* twelve (12) months prior to the date of mgistrati0a.a 

Thatems "reside", "reeidanaa" and adcmioile" ham been givea 

varied meanings and shades of meaning. In some lnstanoes they am ooastruad to bs different and in others thsy am held to be ideatioal, 

depending upor~ the apparent stand inwhioh thsy am employed when oonsidered together with the whole oontexb of a statute. 'It nas stated in 

an opinion ty this department dated September 13, 1933, addressed to Dr. 

H. Y. BcPlediot, that "reside" as used i&this statute has the sams meaning as ndcmioileW.~ This same ruling.was made in oonferenoe opinim No. 

2977, datsd,January 10, 1938, Attorney General's Report 1994 to 1936, p. 

114, dimstsd to Dr. H. Y. Benedicrt;. 

%hem husband and wife am living apart under a juduoial deoree 

of diroroe or separation, the wife may asquim a separate dcaaioile of 

her own which will reaain unaffeoted by any ohatrge of residence on the 

part of ths husband. A divorced womaamsy select her own danioile, 

whether she is dimmed a vinoulo matrixonii, or only measa et thoro." 

19 Corpus Juris 417. 
Hon. Hmer P. Raiaey, page 2 (O-1579) 

It is settled law in Texas that the residence or domicile of a 

minor child is ordinarily that of the father when the parents are not divorced. Gulf C. dc S. F. Ry. Co. vs. Lemons, 206 S.S. 75. when a divoras 

has been granted to the wife, an unrestrioted astody of the minor ohild 

givea her in the decree, her assa domiaile establishes that of-the ahild, 

even after her re+aairiage. Ricks vs. Buoks, Supreme Court of ?&an., 83 

W5381 9 R.C.L. 546. 

The view that the child's dcmiaile follows that of its mother 

rather than that of its father, where she has a separate domicile sad has 

been tirdedthe oustody of the child, eus taken in Toledo Ihroti~ Cornpany vs. Cameron, 137 Fed. 48, in reply to the oonteatioathat the father's 

domioile in Obio, in which state the wife oyss granted a divoroe with custody of the child, determined that of the ohild who was taken by the wife 

to another stated and lived ihem with her, aad that aoooriiagly the obild 

was not entitled to sue in a Federal Court as a citizen of the other State. 

The Court said: 

"It is doubtless true that the general rule is that the domioile of the 

ohild follows that of the father. But this ruIe does not hold when the 

pemats em judicially separated, and the oustody of the child is awarded 

to the mother. . . . It would be iaooasisteat with such a deoree thet 

the dcmioileof the child should o&&tue to be that of the Pathers for 

the custody and control of the ohild, upoa whichthefhther's domicile is 

imputed to the child, no longer exists, but is transferred-to the mother." 

Ia Griffin vs. Griffin, 187 Pacifio 598, where a wife was granted 

a diwroe in California with custody of the ohildma, and subsequently 

obtainedthe court's oonditioaal permission to take than out of its jurisdiction, but disregarded the ooadition to return than, theirfather having 

apparently remained in that state, it ws said: 

We larow of no law that would prevent the mother from ohangiag her dmnicile 

to another state, and,'upon compliance with the deoree, taking the ohildrea 

with her. The children being in the oare and custody of the mother, her 

resideaos is their residenoe. Suoh is the natural effeot of a decree of 

divorce." 

m'our opinion your question, as ns have restated it at the beginning of this opinion, should be answered ia the affirmative. 

Ws have also been furnished with certified copies of tastnrments 

shaming the removal of the student's disabilities as a minor, in the 37th 

District Court of Bexar county on September 7, 1939. Whether or not this 

judgment is binding oa the University is a questionwhich we deem it unneoessary for usto determine. The most that the judgment oould establish, 

relative to the mibor's residence, was that he was a resident of !&me8 

at the tims of the prooeeding. And, even if the judgment is binding upoa 
Hon. Homer P. Rainey, page 3 (O-1579) 

the Ohiversity, he is a non-resident within the meaning of Article 26540 

until he has r&sided within the State for twelve months. As we have seen, 

his residence %a8 with h's mother, a non-resident, at least up tc the 

time of the judment. 

Yours wry truly 

ATTOBNEY GENSPAL OF TEX4S 

By /s/~H$-schie Johnson 

Hirsobie Johnson 

Assistant 

HJ:RSxegw 

A1TORREYGBSER&LOFTEXAS 

APPROVED 

Opinion Camnittee 

ByBWB 

chairman