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Honorable Ernest Guinn County Attorney El Paso County El Paso, Texas Dear Sir: Opinion No. O-3739 Re: Construction of “resident ofthis State” in motor vehicle use tax; Article VI, House Bill No. 8,Acts 47th Legislature, Regular Session. We are in receipt ofyour request for an opinion by this department, inwhich you submit the following question:

*An employe~e ofthe United States Border Patrol was transferred to Texas in May, 1940. He has lived inKansas eleven years, and for the past three years has owned his own home there, which he still owns but is now occupied by atenant. He has voted inKansas every year for the last. eleven years, except last year, andsays- that he would have voted there last year but for the fact that he was out ofthe State on election day. He is now occupying a rented house **i,n**El Paso. Employees in this service are subject totransfer at any time and are in fact frequently transferred, itbeing very unnaUn1 for an employee to remain inthe same place more than about two years. This particular employee was to have been transferred toNew Mexico within the last few days, but the transfer was canceled at the last moment. “While on atrip to Kansas recently this man bought a used automobile, onwhich he paid the Kansas sales tax. He drove the automobile to El Paso and upon being notified that his transfer toNew Mexico was canceled he applied for Texas registration of the automobile. “Is he a ‘resident’ ofTexas within the meaning ofthe recent statute imposing a use tax upon anautomobile brought into this State by a ‘resident’ ?* ‘\_Honorable Ernest Guinn, Page 2, O-3739

Section 1ofArticle VI, House Bill No. 8,Acts 47th Legislature, Regular Session, levi.es atax upon every retail sale ofevery motor vehicle sold inthis State, at the rate of 1percent ofthe total consideration paid or tobe paid tothe seller by the buyer.

Section 2of said Act levies atax as follows: “The,re is hereby levied a **use** tax upon every motor vehicle purchased at retail sa1.e outside ofthis State and brought into this State for use upon the public highways thereof by a resident of this State or by firms or corporations domiciled or doing bi$g’iness inthis State. Such tax shall be equal to one (1) per cent of the total consideration paid or tobe paid for said vehicle at said retail sale. The tax shall be the obl.igation ofand be paid by the person, firm, or corporation operatkng said motor vehicle upon the public highways of thi.sState.” (Underscoring **ours)** Section 5provides: “The taxes levied inthi.sArticle shall be collected by the Assessor and Collector of Taxes ofthe county inwhich any such motor vehicle is first registered or first transferred after such a sale; the Tax Collector shall **refuse** to accept for registration or for transfer any motor vehicle mitt1the tax thereon is paid. “When atax beco%mes du,eon a motor vehicle purchased outside ofthis State and brought i.ntothis State for use upon the highways, the person, firm, or corporati.on operating said motor vehicle upon the public highways ofthi.s State shall pay the tax imposed by Section 2to the Tax Collector ofthe county inwhich such motor vehicle is to be registered. The tax shall be paid at the time application is made for regi.stration of said motor vehicl.e, and the Tax Collector shall refuse to issue the registration l.i.cense until the tax is paid.‘” In 54C. J. § 1,pa712, it i.sstated: *Although there are many definiti,ons tobe found i.nthe books, .itis not easy to give a satisfactory definition ofthis term, for itis flexible, somewhat ambiguous word, used in many and various senses, with the sense inwhich itshould be used controlled by reference to the object, thus having different meanings according tothe context, or the subject matter under discussion. Ithas a great variety ofHonorable Ernest Guinn, Page 3, O-3739

meanings. It is difficult to give an exact definition ofwhat is meant by ‘resident’ as use~din particular statutes, for, although often construed by the courts, the te,rm has no technical mtaning, but is differently construed in**courts** ofjustice, according tothe purposes for which inquiry is made into the meaning of the term. The construction is generally governed by the connection inwhich the word is used, and the meaning is tobe determined from the facts and circumstances taken together in each particular case.” Sometimes the term residence is used synonymous with domicile and a “resident” may be one having his domicile in aparticular place. **At** other times the **term** has reference to a person living in a particular locality without reference to his domicile. The difference has been expressed as one of “actual residence” and “legal residence” and ithas been said that aperson may have his legal residence in one place and his actual residence in another. 15Tex. Jur. p. 710, 63; O’Rourke v. Fort Worth Star Telegram, 19S. W. (2d) 136; **A.** H. Belo Corporation v. Granberry, 9S. W. (2d) 443; Taylor v. Wilson, 93S. W. 109.

Use and other compensating taxes are fr.equently enacted along with retail sales taxes as supplementary or complementary thereto. Aside from their obvious revenue producing object they are also designed to prevent sales tax avoidance through outside purchas,es, and to place local business **on** even **terms** with interstate **commerce** and prevent discrimination against local merchants in favor of competitive merchants in other states. Pacific Telephone &Telegraph Company v. Henneford, (Sup. Ct. Wash. 1938), 81Pac. (2d) 786, 790; Continental Supply Company v. People, (Sup. Ct. Wyo. 1939) 88 Pac. (2d) 488, 490, Fifteenth Street Investment Company v. People, (Sup. Ct. Colo. 1938) 81 Pac. (2d) 764, 766; Henneford v. Silas Mason Co., Inc., 300 U. S. 577, 57 S. Ct. 524, 81 L. ed. 814. Itwould seem tobe apparent from the **statute** itself that the use tax levied by House Bill 8is closely related tothe retail sales tax on motor vehicles and has for its purposes those considerations herein above pointed **out.** After careful consideration ofthe provisions ofthe above statute and the purposes for which itwas enacted, we are ofthe opinion that the Legis**lature** used the phrase “resident ofthis State” inthe sense ofa person’s **‘ actual**  residence,” and not inthe sense ofhis domicile or “legal residence.” Such construction would seem tobe more inharmony with the apparent purposes ofthe Legislature in enacting the use tax, and would tax those whose use of the highways might be expected tobe more or less continuous.-

Honorable Ernest Guinn, Page 4, O-3739
Having determined the meaning ofthe term “resident” as used inthe statute, its application to particular individuals becomes aquestion of fact tobe determined from al1 the facts and circumstances ineach particular case. This department is not authorized to pass upon questions of fact, however, we w,ould point out that under the facts you outline, this individual has lived in Texas since May, 1940, and while he may maintain his domicile in .” : Kansas and may inthe future be transferred from Texas, from all that appears inyour letter it is his present purpose to remain here indefinitely,

Assuming that yo,ur letter presents all the facts, we are ofthe opinion that this individual is a resident of Texas within the meaning ofArticle VI, H. B. No. 8,Acts 47th Leg., Regular Session.Yours very truly ,ATTORNEY GENERAL OF TEXAS

Cecil C. Cammack

Assistant

ATTORNEY GENERAL CCC:mp APPROVED OPINION

Chairman