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                      ~~EATTORNEY                  GENERAL


PRICE DANIEL
ATTORNEY
      GENl!RAL

                            February    12, 1952


     Hon. Hen*+ Taploar     Jr.        Opinion No. V-1405,
     Catznty Attorney
     Be11 C,ounty                      Re:   Applicability  of the motor
     Belton, Texas                           vehicle use tax levied by
                                             Section 2(b), Article 7047k,
                                             V.C.S., to soldi,ers stationed
                                             at Fort Hood who apply far
     Dean Mr,    Taytcw:                     Texas certificates   of title.

                    You s&it    for the opinion of this office the question
     d   the application of the use tax on motor vehicles levied by’sub-
     auction (b) of Section 2 of SECTION VII of House Bill 285, Acts
     52nd Leg,, R-S, 1951, ch. 402, p, 695 (Sec. 2,(b), Art. 7047k, V.C.
     S.), to soldiers stationed at Fort Hood in your county. This pi-
     &imed &be statute provides:

                  YWhen 4 perspn inakes ,epplication,for  the ini-
            tWI ceztikate  d title in this St&e on a patticular
            motor vehicle, he shall pay a use tax on that motor
            vehtcle in the sum of Fifteen Dollars ($15). No cer-
            tificate of title a+ mot& vehidle registration   for such
            mstor vehicle shall’be issued until the u&tax      im-
            posed by this subsection has been paid. However, a
            person is not liable for the tax imposed by this sub-
            section if the sales or use tax imposed by any other
            provision of this Act has been previously paid upon
            such motor veh&cle. It,is the purpose of this subsec-
            tiop td’impose a use tax upon motor vehicl@s brought
            Snto this State by new residents of this State.”

                   The tax imposed by this statute is upon “motor vehi-
     cles brought into this State by new residents of this State.” Un-
     less a sol&ier is a new resident of this State within the purview of
     the statute, it is clear that the tax does not apply to him. The
     Legislature   did not define what it meant by a resident ti new
     resident,   In Houston Printing Co. v. Tennant, 120 Tex. 539, 39
     S.W.Zd 1089 (1931), the Court, in discussing the subject, stated:

                   “Webster’s  New International Dictionary defines
            the word ‘reside’ as follows:   ‘To dwell permanently
            or for a considerable time; to have a settled abode for
            a time; to have one’s residence or domicile.’
Hon. Henry TaylorJr,,           Page 2,(V-1405)



              “It has never been the policy of the courts of
       this state to give a strict technical construction to
       the words ‘inhabitant,’ ,‘resident,’ ‘domicile,’ and
     ’ ‘residence.’   It f6 well settled by the decisions of
       @ii6 state that the words ‘inhabitant’ and ‘resident’
      aud ‘domicile’ and ‘residence’ are interchangeable
       term6 , . ,”

            In the absence of any intention to effect a change of
domicile or re6ldence, the domicile of a person in the military
service is in a0 way affected or changed by reason of his entry
iato the service.        A person   $n the military   service   dao   not lose
or abandon the domicile which he had when he entered~the serv-
ice, nor does he acquiie & new orie at the place       ere he serves,
regardle’ss of th,e duration of his service at such“f”place. :In Gal-
lagher 0. Gallagher,, 214 S,W, 516 (Tex.~Ctv., App, 1919), the-
%ttFt  6tatedf

               “Ordinarily,    it is a presumption of law that
      where a person actually lives is his~,domicile, such
      presumption of oourse being rebuttablei but no such
      presumption could arise in the case of a soldier in
      actfve service, who has no choice of domicile, but
      must ordinarily cling to his domicile of origin.       Or-
      dinarily,    an act of removal to a certain location,
      coupled #itb the intent to make a permanent resi-
      dence there, might be sufficient to fix a domicile,,
      but that is because the removal is voluntarily made,
      which could not occur in the case of a soldier in ac-
      tive service.     It follows that the removal of the lat-
      ter to a place and his residence there for years would
      not offer any probative evidence to corroborate        evi-
      dence as to an intention to make the place his home,
            3,
      . i .

             The cases as will be noted go so far as ‘to hold with
respect to the domicile of persons in the military      service that
clear and positive pro@ is required to show a relinquishment         of
residence or domicile in one state and the acquisition of a new
residence OF domicile in another. Mere physical presence in the
State of a person in the military service is not sufficient.    Before
a person’in the military service can become a new resident of
;re=&yJ;;;;g           ““F$ e ::
                               pbandop
                                  .   ,,, hjs residence in the state
                      e an in which he Lvvasa &s{dent at the time
of his entry into the service.   Until this occurs, soldiers station-’
ed at Fort Hood located in your county are not sub~iect to this tax
for the obvioue rea6on that-they would not be “new-residents       of
t4e Stab   d   Texas.”
Han,. Henry Taylor,     3r., Page 3 (V-1405)



               Again, it is said in Wilson   v, WSlron, 189 S*W,.&d 212
(Tex,    Civ. App. 1945):

                “A review of the law pertaining to the rest-
         dence of a soldier who is aant to Taxal from anoth-
         er state under military orders prepeuly begins with
         the case of Gallagher v. Gallagher, Tex, Civ. App.,
         214 SW. 516, 518. It is there held that the words
         ‘inhabitant, ’ ‘citizen’ and ‘resident’ mean Bubstan-
         tially the same thing. In order to be an inhabitant
         one must acquire a domicile or home, and It must
         have the stamp of permanency on it, There must
         not anly be an intention to establish a permanent
         domliok1e o? home, but the intention must be accom-
         pnnled by some act don& in the execution of the in-
         tent. A soldier Can abandon his domicile of origin
         an4 select another, ~yet, in order to show a: new dom-
         icile during the term of enlistment; there must be
         the clearest and most unequivocal proof.     . . .”

            In Commercial  Credit Corp. v, Smith, 143 Tex. 612,
187 S.W.Zd 36m45),     the Court quoted with approval the follow-
ing statement:

                 U ‘A soldier or sailor does not acquire a new
          domicile merely ,from being atatfoned at a pwticu-
        ,’lar place in lfne ‘of duty. His domikile remains the
          same as that which’he had when he entered the serv-
          ice, unless he shows a change by proof of clear and
          unequivocal intention,’ 15 Tex. Jur. 116. See also
          Therwanger    v. Therwanger,   Tax. Civ, App, 1’75 S-W,
          2d 704.”                                          .

              It is not to be inferred from what we have said above
that a soldier sent to Texas from another .atate under military or-
ders may not under any circumstances       be&me a resident or a
new resident of this .State and hence subject to this tax. What we
do hold Is that this liability does not arise merely because he is
stationed in Texas, and this regardless     of the length of his stay,

             A soldier comlng from another state to Texas, even
thhugh  under military ooders, may, if he choose, abandon his
domicile OP residence tn the state from which he came and ac-
quite a residence or new residence in the State of Texas.  This
would depend upon a bona fide intention accompanied by poeitive
acts evidenciq   ouch intention.
    Hon. Henry Taylor,    Jr., Page 4 (V-1405)



                             SUMMARY

                 A soldier who is a resident of another state
          stationed in Texas under military orders is not a
          new resident of Texas unless he abandons his resi-
          dence in the state fr~om which.he is transferred    and
          in which he had his residence at the time of trans-
          fer. His intention to become a resident or a new
          resident of Texas must be accompanied by positive
          acts and circumstances    evidencing s,uch intention
          before any such change is established.    In the ab-
          sence of these acts a soldier is not subject to the
          ‘*use tax upon motor vehicles brought into this State
          by new residents of this State,“‘since  he is not a
          resident of Texas.   Sec. 2(b) Art. 7047k, V;C.S.

                                                   Your’s very         truly,

                                                    PRICE DAN&L
                                                   Attorney General


    APPROVED:                                      By   L<yLo&...~f.            "2/


    W. V., G,eppert                                           Assistant
    Taxation Division

    E. Jacobson
    Reviewing Assistant

\   Charles D. Mathews
    First Assistant



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