                       .lrens   21.   Tazzxr\n


                       October 10, 1963

Honorable Oscar M. Laurel        Ordnion No. C-158
District Attorney
49th Judicial District           Re:        Construction of Article 1.05
Laredo, Texas                               of the Election Code as to
                                            residence requirements of a
Dear Sir:                                   county commissioner.
            You have stated the fact situation upon which your re-
            an opinion is based, and the question propounded, as

          "1. County Commissioner,Precinct 2, Webb
     County, Texas, has been duly elected to his
     post.
          “2. Said Commissioneris now changing his
     residence to'anotherlocation within his own pre-
     cinct, but outside the city limits of Laredo.
     Said new residencewill be intended as his per-
     sonal:home. A new house will be‘constructedand
     willinclude all the facilities required, that is,
     telephone, light, etc. The said.Commlsjsloner
     fully intends to live there most of the time.
          “3.  However, the wife of the said Commis-
     sioner will move .toanother residence, within the
     city limits of Laredo, Texas, in Webb County, but
     out of the Commissioner'sprecinct. Said residence
     is mainly for the purpose of remaining close to
     school facilitiesfor the children and also for doc-
     tor and hospital facilitiesfor.the ailing mother of
     the said wife.
          "4. It is the intention of the said Commis-
     sioner to continue paying the wife's living expenses
     of the residenceof the wife, there being no separa-
     tion involved.                  ;:

         ,‘@5. The said Commissionerwill visit his wife
     and family at their residence within the city limits
     and they will visit him at his residence outside.:,the
     city limits. The Commissioner fully intends to spend
     the greater part of his time at his own residence.

                                -765-
Honorable Oscar M. Laurel, page 2   (C-158)


          "The question proposed for an opinion is as
     follows:
          l'UnderArticle 1.05 of the Texas Election Code,
     would the above-mentionedCounty Commissioner,in
     the above-mentionedCounty, meet the requirementsof
     residence as provided for In said Statute, regard-
     less of the fact of the wife's separate resldence?~l
          From the brief accompanying your request. jt becomes
evident that you wish an opinion on whether the living arrsnge-
ments as outlined would affect the commissioner'sright to retain
the office for the remainder of the term to which he has been
elected, and also whether it would affect his Cliglbllity for an-
other term.
          Article 1.05 of Vernon's Texas Election Code, as amended
by Section 4 of Chapter 424, Acts of the 58th Legislature, 1963,
reads in part as follows:
          vNo person shall be eligible to be a candidate.
     for, or to be elected or appointed to, any public
     office In this state unless he shall be eligible to
     hold such office under the Constitution and laws of
     this state, and unless he is a citizen of the United
     States and shall have resided in this state for a
     period of twelve months next preceding the date of
     any primary, general or special election at which he
     offers himself as a candidate or next preceding the
     date of his appointment,as the case may be, and for
     any office which is less than state-wide,shall have
     resided for six months next preceding such election
     in the district, county, precinct, munlcipallty or
     other political subdivision for which the office Is
     to be filled; * * +.*I
          The term "residence," as used in the statutes prescrlb-
lng qualificationsfor voting and for holding office, means domi-
cile or "legal residence" as aistlnguished from place of actual
abode or "actual residence." Snyder v. Pitts, 150 Tex. 407, 241
S.W.2d 136 (1951); Harrison v. Chesshir, 316 S.W.2d 909 (Tex.Civ.
AP   1958; reversed on other grounds, 159 Tex. 359, 320 S.W.2d
81& F arrell v. Jordan;338 S.W.2d 269 (Tex.Civ.App.1960, error
dismi).
          Article 1.05 of the Election Code requires that a county
commissionermust be at the time of his election, a resident of
the precinct from which he is elected. So far as we have been
able to find, there has not been any court decision in this State

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Honorable Oscar M. Laurel, page 3   (c-158)


on what effect a change of residence to some other precinct
within the county, following his election,wouldhave on a com-
mIssloner's right to the office for the term to which he was
elected; but we do have a ruling by the Attorney General's Of-
fice, in Opinion O-6905 (1945) that it would not cause a va-
cancy in the office. And the supreme Court held, in Childress
County v. Sache, 158 Tex. 371, 312 S.W.2a 380 (1958),that
changes in precinct boundaries do not create a vacancy in the
office of county commissioneror deprive the incumbent of the
right to hold.office for the remainder of his term, even though
by reason of such changes his residence is not within the ure-
clnct from which he was elected. Whitmarsh v. Buckley, 324 S.W.
26 298 (Tex.Civ.App.1959),held that Article 1.05 requires that
a person elected to serve a political unit as an officer (in
that case, trustee of an independent school district) must be,
when elected, and during his term of office must remain, a resi-
dent of such political unit, but the court distinguishedu-
dress County V. Sache on the ground that a county commissioner
Is elected to serve the whole county and not to serve his pre-
cinct only. Under the view we take of the facts you have out-
lined, it is not necessary to consider the effect on present
tenure of a change of residence to some other precinct, because
we are of the opinion that the commissioner'sresidence (domi-
cile) will continue to be In the precinct from which he was
elected.
     The question raised by the facts stated in your opinion
request is whether the commissioner'sdomicile or legal residence
will be in the precinct where he maintains'his "actual residence"
or in the precinct where the wife's "actual residence"islocated.
This ouestion is generatedby the provision in Article 5.08 of
the Eiectlon Code-that the residence of a married-man "iswhere
his wife resides."
     In Article 5.08. the Dhrase "where his wife resides" re-
fers to her domicile'orlegal residence. Malor v. Loy, 155 S.W.
2d 617 (Tex.Civ.App.1941); Farrell v. Jordan, m.       If the
wife's domicile will be in Precinct No. 2. where her husband is
living, then of course there is no problem in concluding that the
husband's domicile Is also in that precinct. On the other hand,
if her domicile is not in that precinct, we have the question of
whether Article 5.08 conclusivelyfixes the husband's domicile
at the same place as the wife's domicile.
     You have stated that the reason for the wife's living in
Laredo is mainly for the purpose of remaining close to school fa-
cilities for the children and also for doctor and hospital faclli-
ties for her ailing mother. It is not stated whether the intention


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                                                                     t
                                                                 .       I


Honorable Oscar M. Laurel, page 4   (C-158)


is for the wife to live with her husband in Precinct No. 2 after
these reasons for her living in Laredo have ceased to exist. If
so, the facts would appear to bring the case within the rule that
the family domicile is at the place selected aa intended as the
permanent home for the family, and temporary absence of the bus-
band or wife, or both, for the purpose of being near school or
medical facilities does not change the domicile where the absent
svouse intends to return after the reason for the absence has
ceased to exist. Clark v. Stubbs, 131 S.W.2d 663 (Tex.Civ.App,
1939); McBride v. Csntu, 143 S.W.2d 126 (Tex.Civ.App.1940):
                       j S.W.2d 697 (Tex.Civ.App.1947); ,B& ' v.
McCehee v. Boedeker. 20(
Peden. 213 S.W,
              .m469 (Tex.Civ.App.1948). However, we a--  ,reof
                                                            __
the o&i&    that the commissioner'sdomicile will be at the place
where he claims his home to be. regardless of what either his OF
his wife's intentions are with*respect to her future place of --
abode.
          On the assumption that the wife intends to remain,per-
manently in Laredo, it is not entirely clear, under the decisions
of the Texas courts, where her domicile will be. Some cases have
said that the wife may have a domicile different from that of the
husband where he has given his consent for the wife to reside else
where than in his home. Miller v. Stine, 99 S.W.2d 397, 399 (Ter
Clv.App. 1936); Barnes v. West, 203 S.W.2d 582 584 (Tex.Clv.App
1947); cf. Stratton v. Hall 90 S.W.2d 865, 866 (Tex.Civ.App.
1936, error dism.) and Cavailln v. Ivey, 359 S.w.2a 910 (Tex.Civ.
ADD. 1962). Other cases have said. or at least Intimated. that
the domicile of the husband and the wife, not permenently'separ-
ated from each other, must be the same. Harwell v. Morris, 143
S.W.2d 809, 816 (Tex.Clv.App.1940); Farrell v. Jordan, m,      at
page 274. Whatever is the correct view on that point, the cases
are in agreement that under the facts you have presented the hus-
band's domicile will be at the place where he actually resides
and intends to make his home. In Harwell v. Morris, supra, the
court said:
          *I** * It has been the law of this State since
     an early day that the place of residence of a married
     woman is where her husband resides. (Citations.)
          "It has never been the law in Texas that the resl-
     dence of the husband is drawn to that of the wife where
     they happen for a.time, to be at different places.
     (Citat1ons.f The rule was not changed by the provisions
     of AIt. 2958, R.C.S., 1925 fiow Article 5.08, Election
     Cods/, which provides that the residence of a married man
     Is where his wife resides. * + *'I



                            -768-
Honorable Oscar M. Laurel, page 5   (c-158).


          As noted in Attorney General's Opinion W-859 (1960)
the court in Stratton v. HaQ          apparently construedArtI-
cle 5.08 of the Election Code'a!%%ly    creating a rebuttable
presumption rather than as conclusivelyfixing the husband's
residence as being "where the wife resldes,8'in the following
quotation:
            "Article 2958 defines the 'residence'of a
       married man, within the meaning of the election
       laws, to be where his wife resides, unless he be
       permanently separatedfrom her, and his residence
       is considered to be in that place unless a conten-
       tion is made that he resides elsewhere. 16 Tex.
       Jur. 039, p. 48. When a contention is made that
       a married man's residence is in some other place
       than where his wife resides, the question must be
       determined by reference to the actual facts and
       circumstances;one of which will be his Intention."
       (Emphasis supplied.)
          You have stated that the house in Precinct No. 2 is the
place which the commissionerintends to be his home. In Farrell
v. Jordan, m,     which was an election contest, the husband lived
in Rosharon, Brazoria County, where he had a business. The wife
lived in Bay City, Matagorda County, in a house which they owned
and upon which they claimed a homestead exemption. The wife lived
in Bay City "because she doesn't like things at Rosharon." The
husband ate and slept In Rosharon about 90 per cent of the time,
and intended that to be his home as long as he had his business
there. He went to Bay City and stayed with his wife nearly every
week end, and the wife also went to Rosharon and stayed with him
on some week ends. On these facts, the Court of Civil Appeals
sustained the trial court's holding that the husband was a legal
resident of Rosharon and entitled to vote there. In our opinion,
this case fully supports our holding that, under the facts stated
in your request, the commissioner'sdomicile or legal residence
will be in Precinct No. 2.

                             SUMMARY

            Under the stated facts, the domicile or legal
       residence of the County Commissionerof Precinct
       No. 2, Webb County, Texas, will continue to be in
       that precinct,where he intends to live and maintain
       his home, although his wife and children will be



                             -76%
Honorable Oscar M. Laurel, page 6      (c-158)



     living outside the precinct. Farrell v. Jordan,
    338 S.W.2a 269 (Tex.Civ.App.1960).


                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General




MKW:mkh:wb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Marietta Payne
Pat Bailey
Howard Fender
Joseph Trimble
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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