THE ATTORNEY GENERAL OF TEXAS

Honorable O.J.S. Elllngson General Manager Texas~PrisonSystem Huntsville, Texas
Dear Sir: OpinionNo. O-1438 Re: ConstFuingRule 2 'ofthe tiegiilation goveFnlng appointments ln'.the Texas Prison System: "Remust-be a cltlZen of the Uriited States; an&must have maintained legal resiaence in the State of Texas for a'period of not less than two years yior to the date of application.

. We are In receipt of your letter ofDecember 6,~1939,‘~ requesting an opinion of this department,which reads as follows:
"Re: Thomas E. Alllson Marauez, Texas "Theabove named Is an applicant for a posltlon && guard or stewardwith the Texas Prison System.
"He calls his hoine Marquez, Texas; however, he and his family left Texas approximately 15 years ago~and have resid& in Old Mexico since that time, Mr. Allison came back to Texas on September 1st of this year seeking employment because of economic conditions inMexico; however, his family still lives there. He states during this tlme he has malntained his residence at Marquez, Texas; however, he has not paid his poll tax. He-~furtherstates he registered with the American consul in Old Mexico as an allen, but he did not take out citizenshippapers and did not take Interest in polltics In 

### old Mexico.
"I enclose a copy of our applicationblank, and you will note that Rule No. 2 of the Regulations Governing Appointments in the Texas-- ..

Honorable O.J.S. Elllngson, page 2 O-1438

Prison System reads as follows:
"'Hemust be a cftlzen of the United States, and must havemaintained legal residence in the State of Texas for a period of not less than two years prior to the date of application.'
"Wewould like to knowwhether Mr. Allison can be considered as having maintained legal residence In the State of Texas for the past two or more years." The proper answer to the question propoundedrests largelyupon what Is meant by the term "residence,"as it Is used in your regulations governing appointment In the Texas Prison System. The word residence" is a very elastic, flexible and relative term, and Is difficult to define, as it has no fixedmeaning which can be used alike in all cases. Its meaningdependsupon the subjectmatter and connection in which it Isused, and the sense In which it shouldbe used Is controlledby the reference to the object. 54 CorpusJuris p. 705, Sec. 1. The terms "residence"and "domicile"have been given varied meanings and shades 6f meanings. In some lnstances they are construed to be different and Ln others they are held to be identical,dependingupon 'theapparent sense in which they are employed. Itwas'stated in an opinion by this department,dated September 13, 1933, addressed to Dr. H.Y. Benedict, that l'resldence as used in this statute (statutes governingresident ana non-resident fees charged college students) has the samemeaning as domicile:" This same ruling was made In conference oplnlonNo:~~2977,dated January 10, 1936, Attorney General'sReports 1934-1936,p. 114, dlrected toDr. H.Y. Benedict.

The word "domicile" may be substituted,as was done In construing the above mentloned statutes, for theword "residence" in Rule 2 of the regulations governing appointments In the.Texas Prison System. The followingrule is set out in 19 CorpusJuris 407, Sec. 19, concerning the effect of absence on one's home or domicile: "If a person leaves his home or domicile for a temporarypurpose with an intentltn to return, there is no change of domicile. This rule Is further substantiatedby the case of Sabriego, #c ux vs.White, 30 Tex. 585, inwhich the courtmade the following statement:- . .

Honorable O.J.S. Ellingson,page 

### 3 O-1438

"No length of absence from one'sdomicile when one's purpose is to return to it operates as a change of domicile."
In 19 Corpus Jurls 

### 406,this line of reason&g is by this statement:

"The originaldomicile is not changed even by a long absence if there If any intention of returning." supported

In the case of Lumpkln vs. Nicholson, 

### 30~9.W.

### 568, in an opinionby the Court of CivilAppeals, in whibh a writ of error was denied by the Supreme.Court, itwas hela'that there was some evidence that the object of removalwas to obtain better educational facilities for the children, that the widow haa not entirelygiven up the intention of returning to Texas, and that the deceased haa stated his Intentionof reserving his home there as a "nest egg" for his family, the court here heliithat the plalntlff had not abandoned the home. A person's legal residence or domicile is governed to a large extentby his intentton.

In the case of Gaar Scott and Companyvs. Burge, 110 9.X. 

### 1.81,

itwas held.that a removal to another state lntenaed to be temporary and accompanied at all timesduring the"absence by an intention to return and re-occupy the homestead;will not defeat a homesteadrlght once enjoyedwithin the state. .~ ,.., In conference opinion,Nor. 2977, dated January 10,~~ 1936; Attbrney-General:

Reports 1934-1936,p. 11, directed.toDr. H.Y. Benedict, this questlonwas answered in the followingmanner:

"What is the retitidence status,under the terms of the statutereferred to (tuitionfee statute) Lifstudentswho are minor children of American citizenswho live in Mexico or some other foreign county? May these students be classifiedas residents of the foreign. country in whbch their parents are living, or should these studentsbe classifiedas resldents of the specific state Zn which the parents had legal residence at the time they moved to the foreign country? Does the length of time the parent has lived .In:theforeign country have any bearing on the student's residence classification? "Theresidence statusunder the terms of the statutereferred to of studentswho are minorHonorable O.J.S. Ellingson,page 4 

### .o-1438

children of American citizenswho live in Mexfco or some other foreign country is a fact questiondetermined largely by the Intention of the father of the children. The fact that they are living In Mefico, In our opinion, would not prevent them from being classified as residents of Texas if when they moved to Mexico their intentionwas to return and they did note

abandon their intention after the move. The determtnationof this question is largely a matter of fact governed by the intedlon of the father of the children. The length of time the parent has lived in the foreign country does not have any bearing on the student'sresidence~quallficatlons."
In answer to your question, we will have t‘6 assume certaln facts. If Mr. Allison's sojourn iti Mexicowas considered by hlm3temporery,and he &t all times~ had the intention of~~~returning to Texas as his place of residence,we can answer that under Rule 2 of the regulations he has maintaineda legal residence in the State of Texas for a period of two years pr~lor~~ to Zhla time. However, if Mr. Allisonwent,to Mexico with the Idea of making that his permanent residence, or at any time durFng his stay in Uexico he abandoned his Lntentidnsof returning to Texas,we must answer that he does not qualify "-under Rule 2 of the regulations.

The-facts set out in your letter are not suffldlent for us todetermine tiategorically the resideni:e'of

Mr. Allison; however,we trust that- our,discussionwill enableyou to answer the question you ask.
Yours very truly
ATTORNEY GENERAL OF TEXAS

FBI:jmwc By s/l"rederik B. Isely Frederlk B. Isely Assistant

APPROm DW"l8, 1939 s/Gerald C. Mann ATTORNEYGENERALOF TEXAS Approved Opinion CommitteeBy s/RWF Chairman