THE ATTORNEY GENERAL 

OF TEXAS 

Honorable O.J.S. Elllngson 

General Manager 

Texas~Prison System 

Huntsville, Texas 

Dear Sir: Opinion No. O-1438 

Re: ConstFuing Rule 2 'of the tiegiilation 

goveFnlng appointments ln'.the Texas 

Prison System: "Re must-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 of December 6,~ 1939,‘~ 

requesting an opinion of this department, which reads as follows : 

"Re: Thomas E. Alllson 

Marauez, Texas 

"The above named Is an applicant for a 

posltlon && guard or steward with 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 in Mexico; 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-~further states he 

registered with the American consul in Old 

Mexico as an allen, but he did not take out 

citizenship papers and did not take Interest 

in polltics In old Mexico. 

"I enclose a copy of our application blank, 

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: 

"'He must be a cftlzen of the United States, 

and must have maintained legal residence in the 

State of Texas for a period of not less than two 

years prior to the date of application.' 

"We would like to know whether 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 propounded rests 

largely upon 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 fixed meaning which can be used alike in all cases. 

Its meaning depends upon the subject matter and connection in 

which it Is used, and the sense In which it should be used Is 

controlled by the reference to the object. 54 Corpus Juris 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, depending upon 'the apparent sense 

in which they are employed. It was'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 

governing resident ana non-resident fees charged college students) has the same meaning as domicile:" This same ruling 

was made In conference oplnlonNo:~~2977, dated January 10, 1936, 

Attorney General's Reports 1934-1936, p. 114, dlrected to Dr. 

H.Y. Benedict. 

The word "domicile" may be substituted, as was done 

In construing the above mentloned statutes, for the word "residence" in Rule 2 of the regulations governing appointments 

In the.Texas Prison System. 

The following rule is set out in 19 Corpus Juris 407, 

Sec. 19, concerning the effect of absence on one's home or domicile: 

"If a person leaves his home or domicile 

for a temporary purpose with an intentltn to 

return, there is no change of domicile. 

This rule Is further substantiated by the case of Sabriego, #c 

ux vs. White, 30 Tex. 585, in which the court made the following statement: 
- . . 

Honorable O.J.S. Ellingson, page 3 O-1438 

"No length of absence from one's domicile 

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 original domicile 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 opinion by the Court of Civil Appeals, in whibh a writ of 

error was denied by the Supreme.Court, it was hela'that there 

was some evidence that the object of removal was to obtain 

better educational facilities for the children, that the widow 

haa not entirely given up the intention of returning to Texas, 

and that the deceased haa stated his Intention of reserving 

his home there as a "nest egg" for his family, the court here 

helii that the plalntlff had not abandoned the home. A person's 

legal residence or domicile is governed to a large extent by 

his intentton. 

In the case of Gaar Scott and Company vs. Burge, 110 

9.X. 1.81, it was held.that a removal to another state lntenaed 

to be temporary and accompanied at all times during the"absence 

by an intention to return and re-occupy the homestead;will not 

defeat a homestead rlght once enjoyed within the state. 

.~ ,.., 

In conference opinion,Nor. 2977, dated January 10,~~ 1936; 

Attbrney-General: Reports 1934-1936, p. 11, directed.to Dr. H.Y. 

Benedict, this questlon was answered in the following manner: 

"What is the retitidence status, under the 

terms of the statute referred to (tuition fee 

statute) Lif students who are minor children 

of American citizens who live in Mexico or 

some other foreign county? May these students 

be classified as residents of the foreign. 

country in whbch their parents are living, or 

should these students be classified as 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:the foreign 

country have any bearing on the student's 

residence classification? 

"The residence status under the terms of the 

statute referred to of students who are minor 
Honorable O.J.S. Ellingson, page 4 .o-1438 

children of American citizens who live in Mexfco or some other foreign country is a fact 

question determined 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 intention was to return and they 

did note abandon their intention after the move. 

The determtnation of 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's residence~quallficatlons." 

In answer to your question, we will have t‘6 assume certaln facts. If Mr. Allison's sojourn iti Mexico was 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 maintained a legal residence in the State of Texas for a period of two years pr~lor~~ 

to Zhla time. However, if Mr. Allison went,to Mexico with the 

Idea of making that his permanent residence, or at any time 

durFng his stay in Uexico he abandoned his Lntentidns of 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 to determine tiategorically the resideni:e'of Mr. Allison; 

however, we trust that- our,discussion will enable you 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 Committee By s/RWF Chairman