                         Ausms~.     TRXA~         78711



                                   March    20,    1975



The Honorable F. H. McDowell                          Opinion No.   H-   559
President
East Texas State University                           Re: Whether persons
Commerce,    Texas 75420                              incarcerated  in a federal
                                                      correctional institution in
                                                      Texas are Texas residents
                                                      for purposes of college
                                                      tuition.

Dear President    McDowell:

         You have requested      our opinion regarding whether persons
incarcerated    in a federal correctional    institution in Texas are Texas
residents   for purposes    of college tuition.     We will first address
ourselves    to the status  of inmates who were not Texas domiciliaries
prior to their incarceration.

          Section 54.051 of the Texas Education Code prescribes          a tuition
rate  for resident    students of $4 per semester       credit hour, but not less
than $50 per semester,        and for nonresident    students a rate of $40 per
semester     credit hour.    An individual above the age of 18 years is
classified   as a “resident”    if he has “resided in” Texas for a 12-month
period prior to registration.        Sections 54.052(e)   and 54.054,   Tex.
Educ. Code; Attorney General Opinion H-82(1973).               “Resided in” is
defined by the statute     as “domiciled    in. ”  Exceptions to this general
test for determining      residency,   discussed   below, are detailed in other
portions of the statute.

        In the United States Supreme Court’s recent decision in Vlandis v.
Kline,  412 U.S. 441 (1973). the Court struck down a Connecticut        statute
which in certain instances    created an irrebuttable   presumption   of non-
residency.    The statute   provided that if the legal address of a married
student was outside     the state at the time of admission,   or if the legal




                                       p.   2515
The Honorable     F.H.    McDowell       page 2       (H-559)




address   of a single student was outside the state during the year pre-
ceding admission,     such student remained a nonresident for tuition
purposes    so long as he remained a student in Connecticut.     The Supreme
Court held that the statute   contravened  the Due Process   Clause of the
fourteenth amendment because it denied a person the opportunity to
present evidence that he is a resident,    on the basis of a permanent
irrebuttable   presumption   which was not necessarily  true  in fact.

         The significance of the Vlandis decision for the present inquiry
is that, while no Texas statute in itself creates an irrebuttable   pre-
sumption of nonresidency     with regard to prisoners,  section 54.052    of
the Education Code, in combination      with a number of court decisions,
appears to have that effect.

         Since section 54. 052 defines “residence”    as “domicile, ” and
since the manner of determining      domicile is not specified in any Texas
statute,  we must rely on judicial construction.     An early opinion,
Hardy v. DeLeon,      5 Tex. 211 (1849).cited Story’s Conflict of Laws for
the proposition   that:

                  . . . residence   in a place, to produce a change in
                  domicile,   must be voluntary.    If, therefore, it be
                  by constraint   or involuntary,  as by banishment,   arrest,
                  or imprisonment,     the antecedent domicile of the party
                  remains.    &,    at 235.

        Other cases which~have considered      various classes  of physically
detained or legally disabled persons have adhered to this rule.       The
removal   of an insane person to a different county for institutionalization,
for example,   is not voluntary and cannot therefore constitute a change
of domicile.   Owens v. Stovall,    64 S. W. 2d 360, 362 (Tex. Civ. App.
 --Waco  1933, writ ref’d).   Federal cases have reached the same conclu-
sion, at least for purposes of diversity jurisdiction   and venue.    See,-
Ellinburg v. Connett,     457 F. 2d 240 (5th Cir. 1972); Dreyer v. JGt,
349 F. Supp. 452 (S. D. Tex. 1972), aff’d.     479 F. 2d 1044 (5th Cir. 1973).
In the latter   case,    the Court   stated:




                                          p.   2516
The Honorable    F.H.   McDowell      page 3       (H-559)




                 It appears clear that an otherwise non-citizen   of
                 a state does not acquire a domicile,   and hence
                 citizenship,  in a state merely because he happens
                 to be incarcerated   in that state. &,   at 465.

         Although most courts     have not expressed    the prisoner domicile
rule in such terms,    it is apparent that the effect of the rule is to create
an irrebuttable  presumption     of nonresidency    with respect to all persons
whose preincarceration      domicile was elsewhere.       The Court   of Appeals
for the Sixth Circuit,   recognizing   the logical and constitutional    difficulties
in the operation of such a rule, recently concluded that the question of a
prisoner’s   domicile  required a factual determination      that could not be
made by the facile application      of an irrebuttable   presumption.

         In that case,    Stifel v. Hopkins, 477 F. 2d 1116 (6th Cir. 1973), the
prisoner’s   well-publicized      murder trial in Ohio had aroused a great
deal of hostility against him there.        He was sentenced to serve his term
at a federal facility in Pennsylvania,       and he had declared publicly and
repeatedly   that he never intended to return to live in Ohio.       The Court
noted a number of situations in which a person’s         compelled   residence   in
a particular   jurisdiction     does not prevent his becoming domiciled     therein.
In each of these situations,       the Court observed,  the individual was not
precluded from showing that he had developed the intention to be domiciled
at the place to which he had been forced to remove.          The same opportunity
should be afforded the prisoner:

                 No good reason appears for applying a contrary
                 per se rule to him by making the presumption
                 thathe has retained his former domicile an irreblttable
                 one. -Id. at. 1124.

         In view of the clear trend of Texas and Fifth Circuit cases toward
an irrebuttable   presumption   rule, we would be obliged to disregard
the rationale of Stifel were it not for the “spectre   of unconstitutionality”
raised “by approving the application of an irrebuttable     presumption     of
fact to a particular   class of citizens. ” g,   at 1125. For not only do
the unusual conditions of Stifel, but other circumstances     as well, demonstrate




                                       p.   2517
The Honorable    F. H. McDowell          page 4          (H-559)




situations in which a presumption       of nonresidence     might not be true
in fact.   Federal prisoners,     for example,    may be permitted some
choice of the particular    prison facility in which they will be incarcerated.
g,   at 1119. firthermore,      “the establishment    of an apparently permanent
residence    in the state of imprisonment     by the prisoner’s    immediate
family” would constitute some evidence of his intent to remain there.
g. ,    at 1128 (concurring   opinion).   Although a prisoner’s     physical compul-
sion is an important factor in determining        domicile,    and although the
prisoner has the burden of proving the requisite intent, we cannot conclude
that he may never demonstrate        this intent as a matter of law.

         It is well settled that, where possible,      a statute  should be construed
so as to avoid constitutional      conflict.  State v. City of Austin, 331 S. W. 2d
737 (Tex. Sup. 1960);       Southern Pine Ltimber Co. v. Newton County Water
Supply District,      325 S. W. 2d 724 (Tex. Civ. App. --Beaumont           1959,
writ ref’d,   n. r. e. ). Since we believe that an irrebuttable       presumption
of nonresidence      would raise the “spectre    of unconstitutionality,    ” we
interpret section 54.052,      and the various court decisions which have
considered     the question of a prisoner’s   domicile,    to create a rebuttable
presumption      that a person retains his preincarceration       domicile.     The
presumption      may be overcome     only by a sufficient demonstration        of the
prisoner’s    intent to remain in Texas after his release.

          Exceptions    to the domicile test in determining        residency for
purposes of college tuition are specified in other portions of section
54 of the Education Code.         One of these,    the exception for “military
personnel, ”     section   54.  058,  is necessarily    inapplicable    to prisoners.
Others,    such as the exception for “dependents          of military personnel”
stationed in Texas,       section 54.058,    the exception for the spouse and
children of an employee of an “institution          of higher education, ” section
54.059 and the exception for the spouse of a “resident              of Texas,
classified   as such under this chapter at the time of marriage             and at the
time the nonresident       registers,   ” section 54.056,     would seem to be
available   to few,   if any,   prisoners.

         Under the terms of section 54.052(d),  a person           “who has come
from   outside Texas”  may be classified  as a “resident           student” without




                                             p.   2518
The Honorable    F.H.   McDowell     page 5      (H-5591




regard to domicile,     provided he has been “gainfully employed in Texas
for a 12 month period immediately     preceding registration     in an educa-
tional institution. ” Although the Federal Prison Industries       Corporation
is required by statute to ‘I. . . provide employment     for all physically
fit inmates in the United States penal and correctional     institutions  . . . ”
18 U.S. C. section 4122(b), it is doubtful that individuals who work      in
prison can be said to be “gainfully   employed. ”

         In Sapp v. United States,    227 F. 2d 280, 281 (5th Cir. 19551, the
Court  of Appeals held that federal prisoners      may not be considered
employees    of the United States for purposes of the Federal      Tort Claims
Act.   Prisoners   would also seem not to qualify as persons “gainfully
employed” under any criteria established        by Texas law.    See, %.   ,
Gibson v. Gillette Motor Transport,       Inc., 138 S. W. 2d 29mex.      Civ.
APP.. --Eastland    1940, writ ref’d); Great Southern Life Insurance     Co.
v. Johnson,    25 S. W. 2d 1093 (Tex. Comm.      App. 1930); Rose v. Clutter,
271 S. W. 890 (Tex. Comm.       App. 1925).

         In addition, the “gainfully   employed” exception was probably
written into the statute in order to insure that an individual,      before
he became eligible for resident tuition rates,      would contribute to the
state economy for a substantial      period through sales taxes and purchas-
ing.   We therefore   believe that the term “gainfully employed”       was not
meant to be applied to prisoners.       In summary,    since it is doubtful
that he is qualified for one of the special statutory     exceptions   described
above, a prisoner in Texas who was not a Texas domiciliary            prior to
incarceration,    may demonstrate     the fact of Texas residence    for purposes
of college tuition only by an affirmative     showing that he intends to remain
in Texas after his release.

         In the case of individuals  who were domiciliaries   of Texas prior
to their imprisonment,     we perceive  no problem.    Whether the presump-
tion that a person retains his preincarceration     domicile be viewed as
rebuttable or irrebuttable,    these persons must be deemed Texas residents
for purposes of college tuition.




                                     p.   2519
  The Honorable    F. H.   McDowell       page 6         (H-559)




                                      SUMMARY

                       Persons who are incarcerated       in a federal
                  correctional    institution in Texas and whose pre-
                  incarceration    domicile was in Texas are Texas
                  residents    for purposes of college tuition. Those
                  persons whose preincarceration        domicile was
                  not in Texas may demonstrate        Texas residence
                  only by showing that they intend to remain in
                  Texas after their release.

                                                           Very    truly yours,




                                                           Attorney    General    of Texas


      APPROVED:



Lti
              , KENDALL,     First    Assistant




      C. ROBERT HEATH,      Chairman
      Opinion Committee




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