.lrens 21. Tazzxr\n 

October 10, 1963 

Honorable Oscar M. Laurel Ordnion No. C-158 

District Attorney 

49th Judicial District 

Laredo, Texas 

Re: Construction of Article 1.05 

of the Election Code as to 

residence requirements of a 

Dear Sir: county commissioner. 

You have stated the fact situation upon which your rean opinion is based, and the question propounded, as 

"1. County Commissioner, Precinct 2, Webb 

County, Texas, has been duly elected to his 

post. 

“2. Said Commissioner is now changing his 

residence to'another location within 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‘constructed and 

willinclude all the facilities required, that is, 

telephone, light, etc. The said.Commlsjsloner 

fully intends to 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 purpose of remaining close to 

school facilities for the children and also for doctor and hospital facilities for.the ailing mother of 

the said wife. 

"4. It is the intention of the said Commissioner to continue paying the wife's living expenses 

of the residence of the wife, there being no separation involved. ; : 

,‘@5. The said Commissioner will visit his wife 

and family at their residence within the city limits 

and they will visit him at his residence outside.:,the 

city limits. The Commissioner fully intends to spend 

the greater part of his time at his own residence. 

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

"The question proposed 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 requirements of 

residence as provided for In said Statute, regardless of the fact of the wife's separate resldence?~l 

From the brief accompanying your request. jt becomes 

evident that you wish an opinion on whether the living arrsngements as outlined would 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 affect his Cliglbllity for another term. 

Article 1.05 of Vernon's Texas Election Code, as amended 

by Section 4 of Chapter 424, Acts of the 58th Legislature, 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 Constitution and laws of 

this state, and unless he is a citizen of the United 

States and shall have resided in this state for a 

period of twelve months next preceding the date of 

any primary, general or special election at 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, munlcipallty or 

other political subdivision for 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 aistlnguished from 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; reversed on 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, following his 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 Attorney General'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 precinct boundaries do not create a vacancy in the 

office of county commissioner or deprive the incumbent of the 

right to hold.office for the remainder of his term, even though 

by reason of such changes his residence is not within the ureclnct from which he was elected. Whitmarsh v. Buckley , 324 S.W. 

26 298 (Tex.Civ.App. 1959), held that Article 1.05 requires that 

a person elected to serve a political unit as an officer (in 

that case, trustee of an independent school district) must be, 

when elected, and during his term of office must remain, a resident of such political unit, but the court distinguished udress 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 continue to be In the precinct from which he was 

elected. 

The question raised by the facts stated in your opinion 

request is whether the commissioner's domicile or legal residence 

will be in the precinct where he maintains'his "actual residence" 

or in the precinct where the wife's "actual residence"is located. 

This ouestion is generated by the provision in Article 5.08 of 

the Eiectlon Code-that the residence of a married-man "iswhere 

his wife resides." 

In Article 5.08. the Dhrase "where his wife resides" refers to her domicile'or legal residence. Malor v. Loy, 155 S.W. 

2d 617 (Tex.Civ.App. 1941); Farrell v. Jordan, m. If the 

wife's domicile will be in Precinct No. 2. where her husband is 

living, then of course there is no problem in concluding that 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 5.08 conclusively fixes the husband's domicile 

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 remaining close to school facilities for the children and also for doctor and hospital facllities for her ailing mother. It is not stated whether the intention 

-767- 
t 

. I 

Honorable Oscar M. Laurel, page 4 (C-158) 

is for the wife to live with her husband in Precinct No. 2 after 

these reasons for 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 selected aa intended as the 

permanent home for the family, and temporary absence of the busband or wife, or both, for the purpose of being near school or 

medical facilities does not change the domicile where the absent 

svouse intends to return after the reason for the absence has 

ceased to exist. Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App, 

1939); McBride v. 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 domicile will be at the place 

where he claims his home to be. regardless of what either his OF 

his wife's intentions are with*respect to 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 cases have 

said that the wife may have a domicile different from that of the 

husband where he has given his consent for the wife to reside else 

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. Stratton v. Hall 90 S.W.2d 865, 866 (Tex.Civ.App. 

1936, error dism.) and Cavailln v. 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. Harwell v. Morris, 143 

S.W.2d 809, 

page 274. 

816 (Tex.Clv.App. 1940); Farrell v. Jordan, m, at 

Whatever is the correct view on that point, the cases 

are in agreement that under the facts you have presented the husband's domicile will 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 residence of 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 different places. 

(Citat1ons.f The rule was not changed by the provisions 

of AIt. 2958, R.C.S., 1925 fiow Article 5.08, Election 

Cods/, which provides that the residence of a married man 

Is where his wife resides. * + *'I 

-768- 
Honorable Oscar M. Laurel, page 5 (c-158). 

As noted in Attorney General's Opinion W-859 (1960) 

the court in Stratton v. HaQ apparently construed ArtIcle 5.08 of the Election Code'a!%%ly creating a rebuttable 

presumption rather than as conclusively fixing the husband's 

residence as being "where the wife resldes,8' in the following 

quotation: 

"Article 2958 defines the 'residence' of a 

married man, within the meaning of the election 

laws, to be where his wife resides, unless he be 

permanently separated from her, and his residence 

is considered to be in that place unless a contention is made that he resides elsewhere. 16 Tex. 

Jur. 039, p. 48. When a contention is made that 

a married man's residence is in some other place 

than where his wife resides, the question must be 

determined by reference to the actual facts and 

circumstances; one of which will be his Intention." 

(Emphasis supplied.) 

You have stated that the house in Precinct No. 2 is the 

place which the commissioner intends to be his home. In Farrell 

v. Jordan, m, which was an election contest, the husband lived 

in Rosharon, Brazoria County, where he had a business. The wife 

lived in Bay City, Matagorda County, in a house which they owned 

and upon which they claimed a homestead exemption. The wife lived 

in Bay City "because she 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 stayed with his wife nearly every 

week end, and the wife also went to Rosharon and stayed with him 

on some week ends. On these facts, the Court of Civil Appeals 

sustained the trial court's holding that the husband was a legal 

resident of Rosharon and entitled to vote there. In our opinion, 

this case fully supports our holding that, under the facts stated 

in your request, the commissioner's domicile or legal residence 

will be in Precinct No. 2. 

SUMMARY 

Under the stated facts, the domicile or legal 

residence of the County Commissioner of Precinct 

No. 2, Webb County, Texas, will continue to be in 

that precinct, where he intends to live and maintain 

his home, although his wife and children will be 

-76% 
Honorable Oscar 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 

Attorney General 

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-