f . 

Honorable Ernest Guinn 

County Attorney 

El Paso County 

El Paso, Texas 

Dear Sir: Opinion No. O-3739 

Re: Construction of “resident 

of this State” in motor vehicle use tax; Article VI, House 

Bill No. 8, Acts 47th Legislature, Regular Session. 

We are in receipt of your request for an opinion by this department, 

in which you submit the following question: 

*An employe~e of the United States Border Patrol was transferred to Texas in May, 1940. He has lived in Kansas eleven 

years, and for the past three years has owned his own home 

there, which he still owns but is now occupied by a tenant. He 

has voted in Kansas 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 of the State on election day. He is 

now occupying a rented house i,n El Paso. Employees in this 

service are subject to transfer at any time and are in fact frequently transferred, it being very unnaUn1 for an employee to 

remain in the same place more than about two years. This 

particular employee was to have been transferred to New Mexico within the last few days, but the transfer was canceled at 

the last moment. 

“While on a trip to Kansas recently this man bought a used 

automobile, on which he paid the Kansas sales tax. He drove the 

automobile to El Paso and upon being notified that his transfer 

to New Mexico was canceled he applied for Texas registration of 

the automobile. 

“Is he a ‘resident’ of Texas within the meaning of the recent 

statute imposing a use tax upon anautomobile brought into this 

State by a ‘resident’ ?* 

‘\_ 
Honorable Ernest Guinn, Page 2, O-3739 

Section 1 of Article VI, House Bill No. 8, Acts 47th Legislature, Regular Session, levi.es a tax upon every retail sale of every motor vehicle sold in this State, at the rate of 1 percent of the total consideration paid 

or to be paid to the seller by the buyer. 

Section 2 of said Act levies a tax as follows: 

“The,re is hereby levied a use tax upon every motor vehicle 

purchased at retail sa1.e outside of this 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 in this State. Such tax shall be equal to one (1) per cent of 

the total consideration paid or to be paid for said vehicle at said 

retail sale. The tax shall be the obl.igation of and be paid by the 

person, firm, or corporation operatkng said motor vehicle upon 

the public highways of thi.s State.” (Underscoring ours) 

Section 5 provides: 

“The taxes levied in thi.s Article shall be collected by the 

Assessor and Collector of Taxes of the county in which 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 mitt1 the tax thereon is paid. 

“When a tax beco%mes du,e on a motor vehicle purchased outside of this State and brought i.nto this State for use upon the highways, the person, firm, or corporati.on operating said motor vehicle upon the public highways of thi.s State shall pay the tax imposed 

by Section 2 to the Tax Collector of the county in which 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 54 C. J. § 1, pa 712, it i.s stated: 

*Although there are many definiti,ons to be found i.n the books, 

.it is not easy to give a satisfactory definition of this term, for it is 

flexible, somewhat ambiguous word, used in many and various senses, 

with the sense in which it should be used controlled by reference to 

the object, thus having different meanings according to the context, 

or the subject matter under discussion. It has a great variety of 
Honorable Ernest Guinn, Page 3, O-3739 

meanings. It is difficult to give an exact definition of what is 

meant by ‘resident’ as use~d in particular statutes, for, although 

often construed by the courts, the te,rm has no technical mtaning, but is differently construed in courts of justice, according 

to the purposes for which inquiry is made into the meaning of 

the term. The construction is generally governed by the connection in which the word is used, and the meaning is to be 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 a particular 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 it has been said that a person may have his legal residence in one place and his actual residence in another. 15 Tex. Jur. p. 710, 63; O’Rourke v. Fort Worth Star Telegram, 19 S. W. 

(2d) 136; A. H. Belo Corporation v. Granberry, 9 S. W. (2d) 443; Taylor v. 

Wilson, 93 S. 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), 81 Pac. (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. It would seem to be apparent from the statute itself 

that the use tax levied by House Bill 8 is closely related to the retail sales tax 

on motor vehicles and has for its purposes those considerations herein above 

pointed out. 

After careful consideration of the provisions of the above statute 

and the purposes for which it was enacted, we are of the opinion that the Legislature used the phrase “resident of this State” in the sense of a person’s ‘actual 

residence,” and not in the sense of his domicile or “legal residence.” Such construction would seem to be more in harmony with the apparent purposes of the 

Legislature in enacting the use tax, and would tax those whose use of the highways might be expected to be more or less continuous. 
- 

Honorable Ernest Guinn, Page 4, O-3739 

Having determined the meaning of the term “resident” as used 

in the statute, its application to particular individuals becomes a question of 

fact to be determined from al1 the facts and circumstances in each 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 in the future be transferred from Texas, from all that appears 

in your letter it is his present purpose to remain here indefinitely, 

Assuming that yo,ur letter presents all the facts, we are of the 

opinion that this individual is a resident of Texas within the meaning of Article 

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