                           December 31, 1986




Ronorable Al Luna                       Opinion No.    Jh-611
Chairman
Science and Technology Committee        Re: Residence of persons who winter
Texas Rouse of Representatives          in Texas, for purposes of voting,
P. 0. Box 2910                          operating a motor vehicle,   certifl-
Austin, Texas   78769                   cates of title, and probate,    inher-
                                        itance   tax and marital     property
                                        laws

Dear Representative   Luna:

     You ask several questions concerning the legal status of persons
who reside in Texas foi a limited period of time each year and reside
in another state    the major part of the year.    Your questions  are
prompted by concern over

           the ever increasing      number of so called        ‘Winter
           Texans’ who spend the winter season here in Texas
           but who continue to return to their home states
           each spring.    . . . [Wlhile they arc in Texas many
           of these admittedly         temporary visitors      to our
           state register     to vote and actually      vote in our
           local elections.      This, In spite of the fact that
           In most situations,        these winter visitors       will
           continue    to accept the benefit       of special     real
           estate tax treatments afforded residents          of their
           home state;    will continue to maintain their auto-
           mobile   registration     in their    home state;      will
           continue    to use the driver’s      license    issued by
           their home state; will maintain their registration
           to vote in their home state and vi11 continue to
           pay income tax in their home state showing their
           residence as that state.

     It is in this    setting   that you ask the following      questions:

              1. Would a person who, for example. spends the
           winter   in Texas,    but continues    to accept    the
           benefits   of residence   In another state    (special
           tax rates. registration    to vote, special homestead
           exemptions,   lower tuition     or  fees   at another




                                    p. 2731
Eonorable    Al LUM - Page 2       (J&611)




             state’s  facilities,       etc.)  and who %utends to
             return to another state violate       our laws when he
             or she registers     to vote and/or votes?

                 2. Would a’ person who knows that another is
             not a resident     of Texas (for reasons similar     to
             those    set out above)      violate   our laws by en-
             couraging      or  assisting      such   nonresident to
             register    and/or to vote?

                 3. Would a person who registers        to vote in
             Texas establish  a residence    so as to be required
             to Title his or her motor vehicle      in Texas; have
             it annually inspected;   as well as be required       to
             surrender his or her out-of-state    driver’s  license
             as well as to take and pass the driver’s       license
             test in Texas?

                 4.   Would a person who is registered  to vote in
             Texas be subject     to our probate   and inheritance
             tax   laws?

                  5. Would a person who registers    to vote in
              Texas eatabllsh   a residence  so as to establish
            . jurisdiction  for the purposes of the application
              of our family and marital laws?    In this regard,
              would our cosmuuity property   laws be applied    to
              such person?

     The term “residence”  defies         easy   definition.     The Texas Supreme
Court advises that the term

              Is an elastic      one and is extremely difficult         to
              define.     The meaning that must be given to it
              depends upon the circumstances          surrounding     the
              person    Involved    and largely    depends upon the
              present    intention   of the individual.       Volition,
              intention     and action    are all     elements    to be
              considered    in determining where a person resides
              and such elements         are   equally    pertinent      in
              denoting the permanent residence or domicile.

Mills v, Bartlett,   377 S.W.2d 636, 637 (Tex. 1964).      The term takes
its meaning in light of the object    or purpose of the law in which it
is employed.  Switzerland General Insurance Co. v. Gulf Insurance Co.,
213 S.W.2d 161 (Tex. Civ. App. - Dallas 1948. writ dism’d).       Depending
as it does on factual     ci%astaoces     and Individual   intention,    the
question of residence is judicially    determined.   See Parker v. Brown,
425 S.W.Zd 379. 381 (Tex. Civ. App. - Tyler 1968,o        writ);   Attorney




                                       p. 2732
Ronorable   Al Luna - Page 3    (J’M-611)




General Opinion JM-231 (1984).    The factual cfrcumstances you describe
would be relevant    for a court to consider    in determining whether a
person is a Texas resident for the purposes you inquire.      They do not,
however, reveal the present intention      of the individual   to become a
Texas resident   and, thus, cannot support categorical     answers to your
general inquiries.    The single fact that a person registers    to vote In
this state does not in itself    determine whether the person is a Texas
resident for any of the purposes you inquire.       The remainder of this
opinion will explain why this is so.      We note, however, that there is
ordinarily  a strong presumption that, ff an individual       registers  to
vote in Texas, he will be considered a resident for the other purposes
about which you inquire.

      You first ask whether a person who spends the winter in Texas but
accepts   the aforementioned benefits   of residence    elsewhere  and who
intends to return to another state violates      Texas law by registering
to vote and voting in Texas.   Your second question is whether a person
“who knows another person is not a resident of Texas” violates        Texas
law by encouraging or assisting     the nonresident   to register  to vote
and/or vote.

     To be eligible   to vote   in Texas,   a person must

                (1) be a qualified voter as defined by Section
            11.002  [of the Election    Code] on the day the
            person offers to vote;

               (2) be a resident   of the territory covered by
            the election  for the office  or measure on which
            the person desires to vote; and

                (3)   satisfy  all other requirawents for voting
            prescribed    by law for the particular  election.

Election Code 511.001.     A qualified   voter is a person who, among other
requirements,   is a resident   of Texas and is a registered    voter.  Id.
111.002(S),   (6).  To be eligible     to register  to vote, a person nu8t,
inter alia,   be a resident   of the county in which the application      is
made.    Id. 113.001(a) (5).   Section    1.015 of the Election   Code sets
forth residency requirements for voting purposes:

                (a)  In this code, ‘residence’ weans domicile.
            that is, one’s hone and fixed place of habitation
            to which he intends to return after any temporary
            absence.

               (b)  Residence shall  be determined in accor-
            dance with the common-law rules, as enunciated by




                                    p. 2733
Honorable    Al Luna - Page 4      (a-611)




             the courts   of this   state,        except   a8   otherwisa
             provided by thir coda.

                 (c) A person   does not       lose hia residence        bx
             leaving  his   hone to go         to another  place        for
             tamporary purposes only.

                  (d) A person does not acquire a residence in a
            . place to which he has cons for tamporary purposes
              only and without    tha intention  of  making that
              place his home.

                 (a)   A person who is an inmate in a penal
             Institution   or who is an involuntary      Inmate in a
             hospital    or eleenosynary    institution    does not,
             while an inmate, acquire      residence    at the place
             where the     institution   is    located.     (Emphasis
             added).

       Section    1.015 defines     “residence”      for voting purposes In terns
of dwicile.         Though often      used interchangeably,          “residence”     and
“domicile”     are not technically       rynonynous.      Residence Is considered       a
lesser-included       element of domicile.       Snyder v. Pitts.     241 S.W.2d 136,
139 (Tax.       1951).     Residence    requires      a person    to be living       and
physically     present.in    a particular    locality.     but domicile additionally
requires     the person to live in the locality               with the intention       of
making it his fixed and permanent hone.                Skubal v. Skubal, 564 S.W.2d
45 (Tax. Civ. App. - San Antonio 1979, writ dism’d).                       Thus, it is
often said that a person way have as many residences                     as he or she
choosas, but can have only one domicile.              Switzerland General     Insurance
Co. v. Gulf Insurance Co., s_upra. The fact that one resides elsewhere
is not sufficient        to destroy the person’s domicile as long as there is
the requisite       intent to re-tain ihat domicile.            Los Angeles Airways,
Inc. v. Lummis, 603 S.W.2d 246 (Tex. Civ. App. - Rouston 114th Dist.1
1980). cert. denied, 455 U.S. 908 (1982).                Domicile Is lost,     however.
when the person removes himself with the intent not to return.                      See
Commercial Standard Insurance Co. v. Nunn,                464  S.W.2d  415   (Tex.  G.
APP. - Texarkana 1971, writ dism’d).

      Subsection (b) of section   1.015 provides that residence   is deter-
mined, except as otherwise     provided in the Election    Code, in accor-
dance with the coamon law as announced by Texas courts.          The courts
advise that for voting purposes , the question of residence     is answered
by reference    to actual facts and circunstances,   including   the inten-
tion of the person seeking to vote.      Guerra v. Pena, 406 S.W.2d 769.
776 (Tex. Civ. App. - San Antonio 1966, no writ).            The essential
elements of a domicile    are an actual residence  and the intent to make
it one’s permanent home.       See Texas v. Florida,    306 U.S. 398, 424
(1939); Snyder v. Pitt*,. 241xW.Zd     at 139. “Ewe” is defined to mean




                                        p. 2734
Honorable    Al Luna - Paga 5          (m-611)




a person’s  “true,  fixed and permanent home and principal         eetablleh-
ment , and to which, whenever he is absent, he has the intention              of
returning.”   Su der v. Pitts,   241 S.W.Zd at 139 (citations       omitted).
Subsections   +           and (e)    of section   1.015 wake clear         that
domicile is neithar affected   nor datermined by a person’s      tamporary or
involuntary presence in a particular    locality or institution.

       Ooe court has held that a person who registered                           to vote in a
particular        county represented           that     it was his “current            permanent
residence      address” under the Election                 Code.     Uijaree )v. Paex. 534
S.W.Zd 435 (Tex. Civ. App. - Amarillo                        1976, so writ .~ Given the
code’s definition         of “residence,”          it can be argued that a person who
registers       to vote thereby represents                that    the county is also his
domicile.       It is clear, however,           that individual       facts,    circumstances.
and intentions        will determine whether such representations                      are true.
The fact that         a person who registers               to vote in Texas intends to
return to another state to reside for a portion of the year does not
In itself      reveal the person’s           intention      to maks that state his “home
and fixed place of habitation.”                     a,      Every v. Supervisors           of the
Madison Checklist,              474 A.2d        1059 (N.H.        1984)     (voter     applicant
domiciled       in New Eamoshire though maintaining                   residence      in another
state which had previously                been “his domicile).          It is of uo moment
that the person pays income taxes’ to the other state,                          for states may
tax income earned there by,residents                      and nonresidents        alike.      See,
s,        Shaffer v. Carter, 252 U.S. 37, 49 (1920) (states way tax income
of nonresidents          earned in the taxing state).                 Also,    states may not
grant     special    tax advantages to residents               of the state while denying
the same benefits             to nonresidents           who own Identical          property      or
conduct the identical             activity    In the state and otherwise qualify               for
 such treatment solely for the purpose of protecting                       local economies or
 shifting     costs to nonresidents.               See, e.g.,     Williams v. Vermont, 472
U.S. -,           105 S.Ct.        2465, 86 L.Ed.2d            11 (1985)      (such treatment
violates      equal protection           clause of U.S. Constitution);               Spenyr      v.
 South Carolina Tax Commission, 316 S.E.Zd 386 (S.C. 1984). aff d per
 curiam, 471 U.S. 82, 105 S.Ct. 1859, 85 L.Ed.2d 62 (1985) (denial of
 state income tax deduction to nonresidents                      but allowlng deduction by
 state residents         violates      privileges       and immunities clause of Fourth
 Amendment to U.S. Constitution).                      Thus, the fact that the person
 enjoys     some special          tax benefits         in another state         does not con-
 clusively       establish       that the person          is domiciled        in that state.
 Finally,      the fact        that a person has voted outside                    the election
 district     in which the application               to vote is made is a relevant              and
 important fact to be considered                 in determining the person’s            residence
 qualification,       but it is not controlling.                 See Cramer v. Graham, 264
 S.W.2d 135 (Tex. Civ. App. - San Antonio 1954,                           writ ref’d)       (other
 facts and circumstances may be taken into account).

        In short. whfle the circumstances  you describe would be relevant
 for   a court to consfder   in determining whether    a person meets the




                                            p. 2735
Honorable   Al Luna - Page 6        (JM-611)




residence     requirements     of the Election       Code, fhey do not support a
categorical      answer to your         general   inquiry.      Each case must be
decided according to its own facts.             Sea Hills v. Bartlett,      B.        An
Attorney    General's     Opinion cannot appropriately        resolve     such factual
disputes.       &.      Attorney     General    Opinions   511-569    (1986);     m-394
(1985);    U-849 (1971).        Indeed,   if we aseuma the stipulated          facts  of
your first      question,    a court or jury could reasonably            find that an
individual     did not intend to reside         in%,        and therefore,      was not
eligible    to register     to vote.

       Assuming the stipulated       facts are sufficient    to persuade a court
that a parson registering        to vote in Texas does not have the requisite
intent     CO make his domicile         in this  state,   the person would not
violate     the provisions    of the Election    Code merely by submitting     an
application     to register   to vote.    However, a person,     knowing he is
ineligible     to vote, does commit an offense       if he votes or attempts to
vote in an election       in this state.

         In your letter     requesting     this opinion,     yeu quote article       15.43
of the Election Code of 1951. which decreed that any person who "shall
swear falsely        as to his own qualifications             to vote"    or as to the
qualifications        of another "shall       be guilty of a felony of the third
degree."       With the exception       of chapter lb, which was retained,               the
Election      Code of 1951 was repealed          in its entirety and recodified           in
1985.      See Acts 1985, 69th Leg., ch. 211, 59, at 802, 1076.                    Article
15.43 wag not included             in the recodification,        although other pro-
visions      pertaining   to illegal    voting were recodified.          See Elec. Code
5964.011;      64.012;   276.003 (replacing        1951 Election Codearts.          15.41,
15.45,      15.48,   15.50,    15.52,   15.61).      The omission of previous          laws
from a code has the general               effect     of repealing     the omitted nro-
vieions.        1A Singer,    Sutherland     Statutory    donet&tion        528.08 (rev.
1985) (citing       American Indemnity Co. v. City of Austin, 246 S.W. 1019
(Tex. 1922)). See also Macedonia Baptist Church v. Farm h Rome Savings
6 Loan Ase'n.,         110 S.W.Zd 1013 (Tex. Civ. App. - Dallas                1937. writ
dism'd) (omission of statutes           from 1925 codification        of civil   statutes
repealed.      such statutes).         Bowever,      where a valid        and operative
provision      is omitted through oversight,           it may be held to continue in
effect.        1A Singer,     Sutherland     Statutory    Construction      528.08    (rev.
 1985).      The manner in which the legielature           recodffied    the provisions
of the 1951 code concerning illegal              voting,  i.e.,  by combining several
of the old provisions         into a fewer number of=             sections,     convinces




        . In a brief   submitted   in connection   with this opinion.    the
Secretary of State suggests     that seizing   upon particular  criteria  Co
determine residence,  -,     the owoership of property in another state,
would violate   Texas law and would require      the state to submit such
practice   to the Justice     Department    for preclearance   pursuant   to
section 5 of the Voting Rights Act. 42 U.S.C.      51973c.



                                         p.    2736
Eonorable   Al Luna - Page 7     (J&611)




us that    the*omiseion    of former article        15.43 from the new Election
Code was not an oversight.            It is apparent,       then, that a person
unqualified    to vote does not commit an offense under the Election Code
merely by regietering      to vote in Texas.        A person unqualified     to vote
does, however, ctit        an offense    if the person “votes or attampte to
vote in an election      in which the person knows he is not eligible              to
vote."     Else.   Code 164.012(a)(l).         Also,    an election   officer    who
knowingly "permits      an ineligible      voter to vote without having been
challenged"      cosmite    an offense        under     the  code.    Elec.     Code
063.012(a)(l).

      This conclusion    should not suggest that a person who submits
false   information   on a voter    registration    application will escape
punishment altogether.      Section 37.10(a)     of the Penal Code provides
that a person commits an offense if he

                (1) knowingly makes a false entry in,            or   false
            alteration of, a governmental record;


                (2)  makes, presents,  or uses any record, docu-
            ment , or thing with knowledge of its    falsity and
            with intent that   it be taken as a genuine govem-
            mental record; or

                (3)    intentionally   destroys,  conceals,    removes,
            or otherwise       impairs the verity,    legibility,    or
            availability     of a governmental   record.      (Emphasis
            added).

"Governmental    record"   is defined    to maan anything

                (A) belonging   to,  received      -by.     or   kept    by
            government for information;    or

                (B) required by law to be kept            by others     for
            information of government.

Penal Code 137.01(l).      In our opinion,    the definition   of governmental
record is broad enough to include a voter registration             application.
Cf. V.T.C.S.   art.   6252-17a,  12(2) (definition      of "public   records").
Accordingly,   we believe    that a person who knowingly makes a false
entry on a voter registration       application    cdts      an offense     under
section  37.10 of the Penal Code.

      A person who "swears falsely"   as to the qualifications    of another
person to vote does not commit an offense under the new Election Code.
Both article   15.44 of the 1951 code, which made it unlawful for a
person to "knowingly and intentionally    induce[] or attempt[]    to induce
another   to swear falsely"    as to his qualifications        to vote,  and




                                        p. 2737
Eonorable     Al tuna - Page 8      (JM-611)




article    15.42,   which made it illegal      to "procure,    aid,   or advise
another to . . . vote at any election,        knowing that the person is not
qualified    to vote,,, were omitted from the new Election Code. Section
13.007 of the 1985 code, however, provides          that a person commits an
offense    if he "requests,      commands, or attsmpte      to induce another
person to make a false       statemant on a [voter] regietration        appllca-
Mon.”      Thus, despite   this considerable    revision  of former election
law provisions,     your second question    can be answered in the affirma-
tive,   provided the person is encouraging a person unqualified          to vote
to make a false statement on a voter registration        application.

     As a final note, the secretary    of state advises that the exclusive
procedure    for challenging    a voter applicant's      qualifications       is
provided in sections 13.074 to 13.080 of the Election Code.           Sec'y of
State Election    Law Opinion JWP-15 (1983).      The secretary      has also
promulgated a rule prohibiting    the use of any additional     questionnaire
or the requirement     of additional    written information     from a voter
applicant   who has properly   completed a registration     form.     1 T.A.C.
sai.45     (1978).

         Your thirdinquiry   concerns   whether a person who registers    to
vote in Texas    establishes    a residence   in this state such that the
person Is required to obtain a certificate       of title  from the Depart-
ment of Public Safety for his or her motor vehicle as well as have the
motor vehicle annually inspected in this state.        You also ask whether
under these circumstances     the person must surrender his or her out-of-
state driver's  license and pass the driver exsmination in this state.

      The Certificate        of Title       Act was enacted for the purpose of
reducing and preventing,          inter alla,       the theft of motor vehicles,      the
importation     and trafficking        of stolen     vehicles   in this state,   and the
sale of encumbered motor vehicles               without the required disclosure        to
the purchaser of any liens for which the vehicle                   stands as security.
V.T.C.S.    art.    6687-1,    51.     Section      27 of article    6687-l requires     a
person seeking to sell or dispose of "any motor vehicle required to be
registered     or licensed      in this     State”    to apply for a certificate       of
title    for such vehicle.           Section     30 of the act sets forth various
documentary requirements           for vehicles       brought into this state which
were last regietered        and/or titled       in another state or country and for
vehicles    not manufactured for sale in the United States.                   Subsection
(a) of section 30 also requires the owner of each such vehicle to have
the vehicle      inspected   for compliance with safety standards before the
vehicle    may be registered        or titled      in this state.     See also V.T.C.S.
art. 67Old, 5142A; Attorney General Opinion Jl4-127 (L-Subsection
(b) of section       30 requires a person , other than a dealer or importer,
who brings       into Texas a motor            vehicle     "which is required      to be
registered     or licensed     within this State,, to apply for a certificate
of title    prior to selling,         transferring , or encumbering such vehicle.
Art. 6687-1,       130(b).    Section 51 makes unlawful any sale, offer               for




                                         p.   2738                                           Y
.
    Eonorable   Al Luna - Page 9      (JM-611)




    sale.    or offer    as security    of any motor vehicle   without the seller
    "then     and there”     having    in his possession     a proper  receipt   or
    certificate    of title    covering the vehicle.   Sales made in violation   of
    the act are void.       Art.   6687-1, 153.

          The Certificate      of Title Act plainly        requires   every person who
    seeks to sell.      transfer,    or encumber any rotor vehicle        in this state
    to obtain      a certificate      of title    prior    to any such transaction,
    regardless     of whether the person is a Texas resident.             V.T.C.S.   art.
    6687-1,    5127. 30.      The provisions     of the act are triggered          by the
    occurrence      of any~ of the listed         transactions      and not upon the
    residency     of the owner of a motor vehicle.                The significance     of
    finding that a person is a resident            of this state is in determining
    the place in which the application         for a certificate      of title  is made.
    A Texas resident must make application             in the county of his domicile
    or in the county in which the motor vehicle                is purchased or encum-
    bered.     Id. 127.      A person who brings         Into Texas a motor vehicle
    registeredor      titled   elsewhere must make application         in the county in
    which the transaction         occurs.   Id. 130(b).      Although section    30 does
    not so specify,      it is apparent that it was intended to apply primarily
    to persons who have no Texas domicile.            Compare id. 527. Consequently,
     the fact that a person has registered           to vote in Texas is inapposite
    to the question of whether the person must obtain a certificate                     of
    title   for any motor vehicle the person owns.

         The question  of residency   will,  however, have a bearing                   on
    whether a person must register his motor vehicle in Texas.

          Article     6675a-2,    V.T.C.S..   requires  every owner of a motor
    vehicle "used or to be used upon the public highways of this State,, to
    register   each such vehicle with the Department of Aighways and Public
    Transportation.      Application     is made in the county in which the owner
    resides.      Id.   Article    6675a-6e,   section  2. V.T.C.S.,    permits any
    nonresident-%ner      of a motor vehicle     to "make an occasional    trip into
    this State" in such vehicle without having to register           the vehicle   in
    Texas.    A nonresident     is defined as

                every resident     of a State or Country other than
                the State of Texas whose sojourn in this State is
                as a visitor       and does not engage in gainful
                employment or enter into business     or an occupa-
                tion,   except as may be othervise  provided in any
                reciprocal    agreement   with any  other   State or
                country.

     Art. 6675a-6e. Il.      Vehicles subject to license by the state but which
     are not authorized     to travel on Texas roads for lack of registration
     or reciprocity     with the state      in which it is    registered may be
     temporarily   registered    by the department.   -Id. 13. The Department of




                                           p. 2739
Honorable    Al   Luna - Page 10 (a-611)




Eighwaye and Public       traosportation      is  authorized    to enter     into
reciprocal   agreements with duly authorized       officiale   of other   states
and countries    to provide for the regietration          of motor vehicles    by
Texas residents   and nonreeidente.      V.T.C.S. art. 6675a-16(a).

       The Uniform Act           Regulating   Traffic     on Highways requires            every
motor vehicle         registered    in this state to undergo an annual inepection
for compliance with uniform safety standards.                       V.T.C.S.     art.    6701d,
1140(a).      (cl.      A vehicle     must also be inspected            before     it  may be
registered      in this state or a certificate              of title     may be issued to
its owner.         Id. 9142A(a).        See also   Attorney      General Opinion NW-127
0980).       A person who operates          a vehicle on Texas highways in viola-
tion of these requirements              or without displaying         a valid      inspection
certificate        is guilty     of a misdameanor.        Id.    1140(g).      If, however,
the vehicle          is licensed      in another state         and is temporarily            and
legally     operated under a valid reciprocity               agreemant with Texas, the
owner commits no offense            by operating the vehicle without obtaining                an
inspection      certificate       in this state.     Id.    Further, the Texas Depart-
ment of Public           Safety may recognize       avalid       inepection      certificate
issued by another state which has an inspection                    law similar to Texas.
Id. 1140(d).           See also Attorney General Opinion MU-127 (1980).                      The
irupection       requirement       thus hinges on whether           the vehicle       must be
registered        in this      state    or on whether the owner desires                  or is
required to obtain a certificate             of title    for the vehicle.

      Article     6687b, section     2(a), V.T.C.S.,    prohibits      any person from
driving upon the highways of this state without a valid Texas driver's
license unless the person is expressly exempted by the act.                         Section
10(a) of article        6687b requires    every applicant     for a Texas driver's
license   to be examined by a test of the applicant's             vision,       ability    to
understand highway traffic         signs in the English language, knowledge of
the traffic     laws, ability    to exercise    "ordinary and reasonable control
in the operation       of a motor vehicle,,,     and such other examination that
the Department of Public           Safety   finds    necessary     to determine           the
applicant's      fitness    to operate    a motor vehicle.        Subsection         (6)   of
section    4 forbids      the issuance of a driver's        license       to any person
required     to take an examination unless the person has successfully
passed such examination.          Section IO(b) authorizes         the department to
promulgate a rule allowing a person holding a valid driver's                        license
issued by another state           to receive     a Texas driver's           license      upon
passing     only the vision      examination required        by section          10(a)    and
paying the required fees.

      Article    6687b provides a number of exemptions from the licensing
requirements of the act.        See id. 13. The act exempts persons holding
                                --
valid driver's      licensee  issued by other etatea only if these persons
are not Texas residents.        See id. 53(d), (a). (f). Section
                                --                                  3A extends
a new resident       of Texas who has in his tiediate    possession    a valid
driver's    license    issued by the state or country of previous residence




                                            p. 2740
.

    Eonorable   Al tuna - Page      11      (J&611)




    the privilege      of operating'a      motor vehicle       in this state       without a
    Texas driver's       license    for a period of 30. days after              entering    the
    state.     For the purpose of llceneing         drivers.    the Department of Public
    Safety defines      "resident"     to mean every person whose domicile                is in
    the state of Texas.          37 T.A.C. 115.1(2)        (1985).   All     persons who do
    not fall     within the scope of the definition              era claesifled        as non-
    residents.      Id. 115.1(3).        Applicants     for a Texas driver's           license
    wet surrender0           the department all valid driver's           licensee     in their
    poeeeseion issued by any state.           V.T.C.S. art. 6687b. 92(b).

          Taking each of these provisions         into account, it is evident that
    the legislature        intended   all   Texas residents     to obtain       a valid
    driver's     license    issued by the state       prior   to operating      a motor
    vehicle    on the highways of the state.            Rowever, because       the term
    "resident"      has been defined      for purposes of drivers'         licenses     to
    include    the concept      of domicile,    mare presence     in this      state    is
    ineufficient      to require    a person to obtain a Texas driver's          license
    and to undergo the driver's         examination of this state.        The question
    of whether a person must satisfy         these requirements,     then, depends on
    the sams factors        that determine whether the person is qualified              to
    vote in this state.         As we have already concluded,      the fact that the
    person registers      to vote does not in itself      answer this inquiry.

         You also ask whether a person who is registered    to vote                 in Texas
    is subject to this state's probate and inheritance   tax laws.

          The jurisdiction     of Texas courts over probate matters is des-
    cribed in sections     5 and 5A of the Probate Code. Eowever,while these
    courts have subject matter jurisdiction       to review any probate matter
    brought before them, they may lack venue under the Probate Code and,
    thus, may not admit the decedent's       will to probate or grant letters
    testamentary   or of administration.      See. e.g.,   Matter of Estate of
    E,       693 S.W.Zd 481 (Tax. App. - Corpus Chrieti         1985. no writ).
    Section 6 of the Probate Code provides rules for determining venue in
    probate proceedings:

                     Wills shall    be admitted to probate,        and letters
                 testamentary       or  of    administration        shall     be
                 granted:

                    (a)  In the county where the deceased resided,
                 if he had a domicile  or fixed place of residence
                 in this State.

                     (b)   If the deceased had no daicile      or fixed
                 place of residence     in this State but died in this
                 State,    then either     in   the county where his
                 principal   property.was    at the time of his death,
                 or in the county where he died.




                                             p. 2741
Honorable   Al Lund - Page 12 (JM-611)




                (c)   If he had no domicile   or fixed place of
            residence    in this State,   and died outside   the
            limits   of this State, then in any county in this
            State where his nearest of kin reside.

                (d)  But if he had no kindred in       this State,
            then in the county where his principal       estate was
            situated at the time of his death.

                (e)    In the county where the applicant resides.
            when administration         is for the purpose only of
            receiving    funds or money due to a deceased person
            or his estate        from any governmental     source  or
            agency; provided,       that unless the mother or father
            or spouse or adult            child of  the deceased   is
            applicant,    citation     shall be served personally  on
            the living parents and spouses and adult children,
            if any, of the deceased person, or upon those who
            are alive     and whose addresses      are known to the
            applicant.

Texas courts are without jurisdiction    to probate the wills of deceased
persons with no domicile or fixed place of residence     In Texas who die
outside  the state and have no property or next of kin in the state.
Diehl v. United States,    438 F.2d 705,      709 (5th Cir.   1971). e
denied,  404 U.S. 830 (1971).      Aside from this qualification,    there
appears to be no other limitation    on the authority of a Texas court to
admit wills to probate or grant letters    testamentary or of administra-
tion.

       Clearly,   the will of a deceased person who was registered  to vote
in Texas may be admitted to probate in this state if the person was
domiciled     in Texas at the time of his death.     If the person was not
domiciled    in the state at the time of his death, his will may still   be
admitted to probate in Texas, provided any of the other qualifications
listed    in section 6 of the code are met.    This answer, however, should
not imply that Texas probate laws are entirely           applicable  to the
estates     of deceased persons whose wills are admitted to probate in
Texas.

      Texas courts    follow  the general rule that the effect     and con-
struction    of a will     is determined    by the law of the testator's
domicile   to the extent it relates to personal property and by the law
of the state in which the property is located        insofar as it concerns
real property.     Crossland V. Dunham, 140 S.W.2d 1095 (Tex. 1940); Van
Hoose v. Moore, 441 S.W.2d 597 (Tex. Civ. App. - Amarillo 1969, =T
ref'd n.r.e.1.     Each case must be examined in light of its own facts.
Again,    the fact    that   a person    registers  to vote in Texas      is




                                     p. 2742
Eonorable   Al Luna - Page 13 (~~411)




ineufficient    to determine the extent to which Texas law will            control
the disposition    and administration of the person's estate.

      The eama can be said with respect        to the applicability       of Texas
inheritance    tax laws, although here,        too,  domicile    is   a   relevant
consideration.

       Chapter 211 of      the Tax Code establishes       the criteria     for
determining    the amount of tax due the state        on the transfer    of a
deceased    person's   property.      The code defines    "resident"   as "a
decedent who was domiciled       in Texas on his date of death."     Tax Code
1211.001(13).     A nonresident    decedent is a deceased person who was a
citizen   of the United States and was not domiciled         in Texas at the
time of his death.        Id. 1211.001(11).     Property whose transfer     is
subject to the state inheritance       tax at the death of a Texas resident
includes

            real property having an actual situs in this state
            whether or not held in trust;        tangible   personal
            property having an actual situs in this state; and
            all    intangible   personal  property,    wherever the
            notes,    bonds, stock certificates,     or other evi-
            dence, if any, of the intangible      personal property
            may be physically     located or wherever the banks or
            other debtors of the decedent may be located           or
            domiciled;    except that real property in a personal
            trust is not taxed if the real property has an
            actual situs outside this state.

Id. 5211.051(c).   Property of a nonresident  decedent, the transfer             of
which becomes subject to inheritance  taxes in this state includes

            real property having an actual situs in this state
            whether or not held in trust and tangible personal
            property having an actual situs in this state, but
            intangibles  that have acquired an actual situs in
            this state are not taxable.

Id. 5211.052(c).       The application    of Texas inheritance   tax laws is
zdicated.       for the most part,      on the existence   of estate   assets
having an actual situs        in Texas.    The domicile  of the decedent    is
significant    insofar as it determines the extent to which the transfer
of the decedent's       intangible   personal  property  is subject  to this
state's    inheritance   tax.    See generally Curry v. UcCanless, 307 U.S.
357, 365-366 (1939).

      In deciding  the question        of    residence     for  inheritance     tax
purposes,  a court would take         into    eccount    the circumstances      you




                                     p. 2743
Eonorable   Al Lune - Page lb       (JM-611)




describe: however, the single fact that a person         registers   to vote   in
Texas does not resolve this 1nqulry.s

      It should be noted that finding a decedent was domiciled           in Texas
at the tlma of his death for inheritance              tax purposes      does not
preclude another state from concluding         the decedent was domiciled      in
that state for purposes of its inheritance         tax.   See, e.g.,    Texas v.
Florida,   306 U.S. 398 (1939).     lhe primary conetitutional     restraint   on
such multiple   taxation  arises when the total of the taxes charged by
the competing states     exceeds the value of the entire          estate.     See
Massachusetts   v. Hiseourf,    308 U.S. 1 (1939).      In the event multi5
state claims of domicile are made, the comptroller         of public accounts
is authorized to enter into a written compromise agreement on domicile
with the taxing      authority    of the other      state   and the personal
representative   of the decedent's     estate.   Tax Code 6211.109(a).

      Your fifth  question is whether a person who registers         to vote in
Texas establishes    a residence for the purposes of Texas           family and
marital property laws.

      Section 4.01 of the Family Code specifically        provides that the
"law of this      state applies     to persons married elsewhere    who are
domiciled   in this state,"     Section 3.21 of the Family Code, however,
establishes   residency  qualifications    which determine whether a person
may maintain a suit for divorce in Texas courts:

            No suit for divorce may be maintained unless at
            the time the suit Is filed   the petitioner   or the
            respondent  has been a domiciliary    of this state
            for the preceding six-month period and a resident
            of the county in which the suit is filed     for the
            preceding ninety-day period.

A nonresident may sue for divorce in a Texas court if the respondent
has been domidiled in Texas for at least the last six months prior to




      2. Compare Estate of Paquette,     T.C. Memo. 1983-571,     46 T.C.M.
(CCE) 1400 (1983) (decedent held to be nonresident of U.S. at time of
death for federal -estate tax purposes despite     fact that he owned a
home in Florida and wintered there for 25 years; decedent's        numerous
contacts   with Canada, where he filed    income tax returns,    maintained
valid   Canadian driver's   license and passport,  voted,  and purchased,
registered   and insured his automobile supported court's     finding   that
decedent was domiciled     in Canada; court also considered      decedent's
formal declaration   of Canadian domicile and fact that the bulk of his
assets were situated    in Canada).



                                     p. 2744
                                                                                    :.
Eonorable   Al Luna - Page 15 W-611)




the time the suit is filed.         Pam. Code 53.24.    Thus, the mere fact
that a person is regietered         to vote in Texas does not in itself
determine whether that person may sue or be sued for divorce         in this
state,    since    the Election   Code does not require     a person to be
domiciled    in Texas for a particular    period of tfme prior to becoming
eligible    to vote.     Assuming that a suit for divorce may properly be
maintained,     property in the possession    of either spouse during or on
dleeolution     of the marriage is presumed to be community property and
is subject      to division   in a manner  that the court deems "just    and
right.,,    Fam. Code 013.63; 5.02.

                                  SUUHARY

                  A person who knowingly makes a false entry on
            a voter registration    application    commits an offense
            under section    37.10 of the Penal Code.          A person
            who is unqualified     to vote commits an offense           by
            voting    or attempting    to vote in an election           in
            which the person knows he Is ineligible             to vote.
            Elec. Code 564.012(a)(l).         A person who requests,
            commands, or attempts         to induce     a person       un-
            qualified    to vote to make a false statement on a
            voter registration     application    commits an offense
            under section 13.007 of the Election Code. Whether
            persons who spend the winter in Texas but accept
            the benefits     of residence      in other     states     and
            intend to return to those states are residents              of
            Texas for voting purposes must be determined on a
            case-by-case    basis.    Sections   13.074 to 13.080 of
            the Election    Code provide the exclusive         procedure
            for challenging    a voter applicant's     qualifications.

                  The Certificate    of Title Act, article        6687-1.
            V.T.C.S..   requires every person who seeks to sell,
            transfer,    or encumber any motor vehicle           in this
            state to obtain a certificate       of title    and to have
            the vehicle    inspected   for compliance with safety
            standards prior to any such transaction,         regardless
            of whether the owner is a Texas resident or a non-
            resident.     Article   670ld,   V.T.C.S.,     additionally
            requires   every motor vehicle        registered     in this
            state to undergo an annual safety inspection.              All
            Texas residents who operate motor vehicles          on Texas
            highways are required        to obtain      a valid     Texas
            driver's  license.    V.T.C.S. art. 6687b.       The single
            fact that a person registers       to vote in Texas does
            not determine whether the person must satisfy              any
            of these requirements.




                                      p. 2745
Honorable   Al Luna - Page 16    (J&611)




                  The fact that a person registers   to vote in
            Texas does not reveal whether the parson is subject
            of  Texas probate,    inharitancc  tax.  family  and
            marital property laws, or to what extent   such laws
            may be applicable.


                                           /JYqJ&&&



                                             Attorney   General of Texas

JACK HIGFlTOURR
First Assistant Attorney     Gancral

MARYRELLRR
Executive Assistant   Attorney   General

RICK GILPIN
Chairman. Opinion Committta

 Prepared by Rick Gilpin
 Assistant Attorney General




                                       p. 2746
