Ron. tier P. Rainey, President The lbiversity

of Texas Austin,Texas DsarMr.Raiasyr OpinionX0. O-1579 Re:.Legal

residence

of iminor who has been plaosd in his mother'scustody. ,M moaiwd your lstter of Ootobsr 6, 1939, followed by your lstter datedNovzsabar

3, 1939, inwhioh you requestour opinionoaths following question: "When a tinor’ s parentsam 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 studentis herebydefined to be,a studbst

of less than bW&y4Be (21) years of age, living amy from hi8 family,and whose fsmily residesin anotherstate or whoa? familyhas resided within the state for a period of tinis less than twslvo (12)months priory to'thedate of registration, or a studeat of tweztty-sne (21) years of age or over who residesout of the state or wlm has resided withinthe 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 meaningsand shadesof meaning. In some lnstanoes they am ooastruad to bs different

and in others thsy am held to be ideatioal, depending

upor~ the apparentstand inwhioh thsy am employed when oonsidered

together

with the whole oontexb of a statute. 'It nas statedin 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 husbandand wife am living apart under a juduoial deoree of diroroeor separation, the wife may asquim a separate dcaaioile

of her own which will reaainunaffeoted by any ohatrge

of residence

on the part of ths husband. A divorced womaamsy selecther own danioile, whether she is dimmed a vinoulo matrixonii,

or only measa et thoro." 19 CorpusJuris 417.Hon. Hmer P. Raiaey,page 2 (O-1579)

It is settledlaw 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. Ricksvs. Buoks, SupremeCourt of ?&an., 83 W5381 9 R.C.L. 546.

The view that the child's dcmiaile

followsthat of its mother ratherthan that of its father, where she has a separate domicile

sad has been tirdedthe oustodyof 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 statethe wife oyss granted

a divoroe

with custody of the child,determined that of the ohildwho was taken by the wife to anotherstatedand lived ihem with her, aad that aoooriiagly the obild was not entitled

to sue in a FederalCourt as a citizen of the other State. The Court said:
"It is doubtless

true that the general rule is that the domioileof 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 deoreethet the dcmioileof

the child should o&&tue to be that of the Pathers for the custody and controlof the ohild, upoa whichthefhther's domicileis imputedto 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 preventthe 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 custodyof the mother, her resideaos

is their residenoe. Suoh is the naturaleffeot of a decreeof divorce."

m'our opinion

your question,

as ns have restatedit at the beginning of this opinion,should be answered

ia the affirmative. Ws have also been furnished with certified

copiesof tastnrments shaming

the removalof the student's disabilities

as a minor, in the 37th DistrictCourt of Bexar countyon September 7, 1939. Whether or not this judgment

is bindingoa 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 residentof !&me8 at the tims of the prooeeding.And, even if the judgment is bindingupoaHon. 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

GENSPALOF TEX4S

By /s/~H$-schie

Johnson

Hirsobie

Johnson Assistant HJ:RSxegw

A1TORREYGBSER&LOFTEXAS APPROVED OpinionCamnittee ByBWB chairman