.lrens 21. Tazzxr\n
October 10, 1963

Honorable Oscar M. Laurel Ordnion No. C-158 District Attorney 49th Judicial District Laredo, Texas Re: Constructionof Article 1.05 of the Election Code as to residencerequirementsof a county commissioner. Dear Sir:

You have stated the fact situationupon which your rean opinion is based, and the questionpropounded, as

"1. County Commissioner,Precinct 2, Webb County, Texas, has been duly elected to his post.
“2. Said Commissioneris now changinghis residenceto'anotherlocationwithin his own precinct, but outside the city limits of Laredo. Said new residence will be intended as his personal:home. A new house will be‘constructedand willinclude all the facilitiesrequired, that is, telephone,light, etc. The said.Commlsjsloner fully intendsto live there most of the time.

“3. However,the wife of the said Commissioner will move .to another residence,within the city limits of Laredo,Texas, in Webb County, but out of the Commissioner's precinct. Said residence is mainly for the purposeof remaining close to school facilitiesfor the children and also for doctor and hospitalfacilitiesfor.the ailing mother of the said wife.
"4. It is the intentionof the said Commissioner to continuepaying the wife's living expenses of the residenceof the wife, there being no separation involved. ;:

,‘@5. The said Commissionerwill visit his wife and family at their residencewithin the city limits and they will visithim at his residence outside.:,the city limits. The Commissionerfully intends to spend the greaterpart of his time at his own residence.

-765-Honorable Oscar M. Laurel, page 2 (C-158)

"The questionproposed for an opinion is as follows:
l'Under Article 1.05 of the Texas Election Code, would the above-mentioned County Commissioner,in the above-mentioned County, meet the requirementsof residenceas provided for In 

### said Statute,regardless of the fact of the wife's separateresldence?~l

From the brief accompanyingyour request. jt becomes evident that you wish an opinion on whether the living arrsngements as outlinedwould affect the commissioner's right to retain the office for the remainder of the term to which he has been elected, and also whether it would affecthis Cliglbllity for another term.

Article 1.05 of Vernon's Texas Election Code, as amended by Section 4 of Chapter 

### 424, Acts of the 

### 58thLegislature,1963, reads in part as follows:

vNo person shall be eligible to be a candidate. for, or to be elected or appointed to, any public office In this state unless he shall be eligible to hold such office under the Constitutionand laws of this state, and unless he is a citizen of the United States and shallhave resided in this state for a period of twelvemonths next precedingthe date of any primary,general or special electionat which he offers himself as a candidate or next preceding the date of his appointment,as the case may be, and for any office which is less than state-wide,shall have resided for six months next preceding such election in the district, county, precinct,munlcipalltyor other political subdivisionfor which the office Is to be filled; * * +.*I
The term "residence,"as used in the statutes prescrlblng qualifications for voting and for holding office,means domicile or "legal residence"as aistlnguishedfrom place of actual abode or "actual residence." S.W.2d 136 (1951);Harrison v. Snyder v. Pitts, 150 Tex. 407, 241 Chesshir, 316 S.W.2d 909 (Tex.Civ. AP 1958; reversedon other grounds, 159 Tex. 359, 320 S.W.2d 81& F dismi). arrell v. Jordan;338 S.W.2d 269 (Tex.Civ.App. 1960, error

Article 1.05 of the Election Code requires that a county commissioner

must be at the time of his election,a resident of the precinct from which he is elected. So far as we have been able to find, there has not been any court decision in this State

-766-Honorable Oscar M. Laurel, page 3 

### (c-158)

on what effect a change of residence to some other precinct within the county, followinghis election,would have on a commIssloner's right to the office for the term to which he was elected; but we do have a ruling by the AttorneyGeneral's Office, in Opinion O-6905 

### (1945) that it would not cause a vacancy in the office. And the supreme Court held, in Childress County v. Sache, 

### 158 Tex. 

### 371, 312 S.W.2a 

### 380 (1958), that changes in precinctboundariesdo not create a vacancy in the office of county commissioneror deprive the incumbentof the right to hold.officefor the remainder of his term, even though by reason of such changeshis residence is not within the ureclnct from which he was elected. Whitmarshv. Buckley

### , 324 S.W. 26 

### 298 (Tex.Civ.App. 

### 1959),held that Article 1.05 requires that a person elected to serve a politicalunit as an officer (in that case, trustee of an independentschool district)must be, when elected, and during his term of officemust remain, a resident of such politicalunit, but the court distinguishedudress County V. Sache on the ground that a county commissioner Is elected to serve the whole county and not to serve his precinct only. Under the view we take of the facts you have outlined, it is not necessary to consider the effect on present tenure of a change of residence to some other precinct,because we are of the opinion that the commissioner's residence (domicile) will continueto be In the precinct from which he was elected.
The questionraised by the facts stated in your opinion request is whether the commissioner's domicile or legal residence will be in the precinctwhere he maintains'his "actual residence" or in the precinctwhere the wife's "actual residence"islocated. This ouestion is generatedby the provisionin Article 5.08 of the Eiectlon Code-thatthe residence of a married-man "iswhere his wife resides."

In Article 

### 5.08.the Dhrase "where his wife resides" refers to her domicile'orlegal residence. Malor v. Loy, 155 S.W. 2d 617 (Tex.Civ.App. 1941); Farrell v. Jordan,m. If the wife's domicilewill be in PrecinctNo. 2. where her husband is living, then of course there is no problem in concludingthat the husband's domicile Is also in that precinct. On the other hand, if her domicile is not in that precinct,we have the question of whether Article 

### 5.08conclusivelyfixes the husband'sdomicile at the same place as the wife's domicile.

You have stated that the reason for the wife's living in Laredo is mainly for the purpose of remainingclose to school facilities for the children and also for doctor and hospital facllities for her ailingmother. It is not stated whether the intention

-767-t

. I HonorableOscar M. Laurel, page 4 

### (C-158)

is for the wife to live with her husband in PrecinctNo. 2 after these reasonsfor her living in Laredo have ceased to exist. If so, the facts would appear to bring the case within the rule that the family domicile is at the place selectedaa intended as the permanenthome for the family, and temporaryabsence of the busband or wife, or both, for the purpose of being near schoolor medical facilitiesdoes not change the domicilewhere the absent svouse intendsto return after the reason for the absencehas ceased to exist. Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App, 

### 1939);McBridev. Csntu, 143 S.W.2d 126 (Tex.Civ.App. 1940): McCehee v. Boedeker. 20( 'v. Peden. 213 S.W, ,re of j S.W.2d 697 (Tex.Civ.App. 1947); ,B& .m469 (Tex.Civ.App. 1948). However, we a--

__ the o&i& that the commissioner's domicilewill be at the place where he claimshis home to be. regardlessof what either his OF his wife's intentionsare with*respectto her future place of -- abode.
On the assumption that the wife intends to remain,permanently in Laredo, it is not entirely clear, under the decisions of the Texas courts, where her domicile will be. Some caseshave said that the wife may have a domicile differentfrom that of the husband where he has givenhis consent for the wife to resideelse where than in his home. Miller v. Stine, 

### 99 S.W.2d 

### 397, 399 (Ter Clv.App. 1936); Barnes v. West, 203 S.W.2d 

### 582 584 (Tex.Clv.App. 

### 1947);cf. Strattonv. Hall 

### 90 S.W.2d 865, 866 (Tex.Civ.App. 1936, error dism.) and Cavaillnv. Ivey 

### 359 S.w.2a 

### 910 (Tex.Civ. ADD. 1962). ,

Other cases have said. or at least Intimated.that the domicile of the husband and the wife, not permenently'separated from each other, must be the same. Harwellv. Morris, 

### 143 S.W.2d 809, page 274. 816 (Tex.Clv.App. 1940); Farrellv. Jordan, m, at Whatever is the correctview on that point, the cases are in agreementthat under the facts you have presented the husband's domicilewill be at the place where he actually resides and intends to make his home. In Harwell v. Morris, supra, the court said:

*I* * * It has been the law of this State since an early day that the place of residenceof a married woman is where her husband resides. (Citations.)

"It has never been the law in Texas that the resldence of the husband is drawn to that of the wife where they happen for a.time, to be at differentplaces. (Citat1ons.f The rule was not changedby the provisions of AIt. 2958, R.C.S., 1925 fiow Article 

### 5.08,Election Cods/,which provides that the residenceof a married man Is where his wife resides. * + *'I

-768-Honorable Oscar M. Laurel,page 5 

### (c-158).

As noted in AttorneyGeneral's Opinion

### W-859 (1960) the court in Strattonv. HaQ apparentlyconstruedArtIcle 5.08 of the ElectionCode'a!%%ly creating a rebuttable presumptionrather than as conclusively fixing the husband's residence as being "where the wife resldes,8' in the following quotation:

"Article2958 defines the 'residence' of a married man, within the meaning of the election laws, to be where his wife resides,unless he be permanentlyseparatedfrom her, and his residence is consideredto be in that place unless a contention is made that he resideselsewhere. 16 Tex. Jur. 

### 039,p. 48. When a contentionis made that a married man's residenceis in some other place than where his wife resides,the questionmust be determinedby referenceto the actual facts and circumstances;

one of which will be his Intention." (Emphasissupplied.)

You have stated that the house in PrecinctNo. 2 is the place which the commissionerintends to be his home. In Farrell v. Jordan,m, which was an election contest, the husband lived in Rosharon, BrazoriaCounty, where he had a business. The wife lived in Bay City, MatagordaCounty, in a house which they owned and upon which they claimed a homesteadexemption. The wife lived in Bay City "becauseshe doesn't like things at Rosharon." The husband ate and slept In Rosharon about 90 per cent of the time, and intended that to be his home as long as he had his business there. He went to Bay City and stayedwith his wife nearly every week end, and the wife also went to Rosharon and stayedwith him on some week ends. On these facts, the Court of Civil Appeals sustained the trial court'sholding that the husband was a legal resident of Rosharonand entitled to vote there. In our opinion,

this case fully supportsour holding that, under the facts stated in your request, the commissioner's domicile or legal residence will be in PrecinctNo. 2.

SUMMARY

Under the stated facts, the domicile or legal residence of the County Commissionerof Precinct No. 2, Webb County, Texas, will continue to be in that precinct,where he intendsto live and maintain his home, althoughhis wife and children will be

-76%HonorableOscar M. Laurel, page 6 (c-158)

living outside the precinct. Farrell v. Jordan, 338 S.W.2a 269 (Tex.Civ.App. 1960).

Yours very truly,

WAGGONER CARR AttorneyGeneral

MKW:mkh:wb

APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman Marietta Payne Pat Bailey Howard Fender Joseph Trimble
APPROVED FOR THE ATTORNEY GENERAL

BY: Stanton Stone

-770-