             THE     ATTORNEY    GENERAL
                        OF TEXAS


                         September 17, 1990



Mr. A. W. Pogue               Opinion No. JM-1223
Commissioner
State Board of Insurance      Re:    Definition of "residentl'
1110 San Jacinto              for purposes of article 21.28-D
Austin, Texas 78701-1998      of the Texas Insurance Code
                              (RQ-2007)

Dear Commissioner   Pogue:

     Your questions, as set out in      the brief   accompanying
your request letter, are:

        1. For purposes of the Life, Accident, Health
           and Hospital  Service Insurance Guaranty
           Association Act, TEX. INS. CODE ANN. art.
           21.28-D, what does the term      'resident'
           mean?

        2. For purposes of the Life, Accident, Health
           and Hospital   Service Insurance Guaranty
           Association Act, TEX. INS. CODE ANN. art.
           21:28-D   (Vernon 1981 and Vernon    SUPP.
           1990), must a resident be a legal resident
           of Texas to qualify for benefits?

     Insurance Code article 21.28-D creates and provides for
the operation of the Life, Accident,     Health, and Hospital
Service Insurance Guaranty Association (the l*association*t)
for the purpose of protecting        policyholders,  insureds,
beneficiaries, payees and assignees of certain kinds of
insurance policies,     annuity   contracts,   etc.,  "against
failure in the performance of contractual obligation due to
the impairment    of the insurer." Ins. Code art. 21.28-D,
§ 2.   Association funding is provided through assessments of
"member insurers" -- those insurance companies to which the
act applies that are authorized to transact business in the
state.    Id. §§ 5 (definitions), 9 (assessments).         The
protection afforded by the association       to those persons
covered by it includes guaranteeing, assuming, or reinsuring
policies of insolvent     insurers covered by the act and




                              p. 6476
Mr. A. W. Pogue - Page 2   (JM-1223)




making, or causing to be made, payment         of    contractual
obligations of such insurers. Id, 5 8.

     Section 3 of article 21.28-D, in subsection     (l)(b),
provides that, with respect to the policies and contracts
covered under subsection (l)(a), the act applies as follows:

           (i) to those persons who, regardless  of
       where they reside, except for nonresident
       certificate holders under group policies  or
       contracts, are the beneficiaries, assignees,
       or payees of the persons covered       under
       Paragraph (ii) or (iii); and

           (ii) to those persons who are owners of
        or certificate holders under those policies
        or contracts and who are residents of this
        state at the time such insurer becomes      an
        impaired insurer as defined in this Act; or

            (iii) to those persons     who are        not
        residents of this state at that time but      who
        meet all of the following conditions:

           (A) the policies or contracts are        issued
        by insurers domiciled in this state;

            (B) at the time the policies or contracts
        were issued, the persons were residents. of
        this State;

            (C) the insurers did not hold a license
        or certificate of authority in the states  in
        which the persons reside     at the time a
        delinquency proceeding as defined by Article
        21.28 of this code is commenced against those
        insurers;

            (D) the other states have associations
        similar to the association created by this
        Act: and

           (E) the persons     are not eligible for
        coverage by those associations in the other
        state.   (Emphases added.)

     Subsection (l)(b) distinguishes, in subparts (ii) and
(iii) between two classes of persons covered by the act:
those who were residents   of this state at the time the




                              p. 6477
Mr. A. W. Pogue - Page 3   (JM-1223)




insurer became an impaired insurer,1 and those who were not
residents at such time but resided in Texas when the policy
or contract was issued. Persons    in the latter class are
covered only if certain other criteria are met.

     You note that article 21.28-D does not define the term
"resident" as it is used in the article. You ask us in your
first question,  in effect, to provide    such a statutory
definitiona

     We think that article 21.28-D provides ample authority
for the association, the commissioner, and the State Board
of Insurance to promulgate   rules establishing the scope of
the terms "reside" and "residence,11 as used in article
21.28-D, for purposes of carrying out its duties under the
article. See Ins. Code art. 21.28-D, 55 lo(l)(a),     lO(3) (0
(association shall promulgate   "plan of operation,"   subject
to approval   of the commissioner,     containing  provisions
"necessary or proper  for the execution of the powers      and
duties of the association'),   10(l)(b) (if association   does
not submit suitable plan of operation,      commissioner   may
adopt rules    "necessary    or advisable"    to   effectuate
provisions  of act), 20 ("State Board of Insurance           is
authorized and directed to issue such reasonable rules and
regulations as may be necessary    to carry out the various
purposes and provisions of this Act, and in augmentation
thereof"):  see. e.q., 37 T.A.C. 5 15.1(2), (3) (Department
of Public Safety rule defining "resident" as "person whose
domicile is in the State of Texas" for purposes of driver's
license requirements of V.T.C.S. article 6687b).

     It is not the function of this office, under the con-
stitutional and statutory provisions governing the opinion
process, to write the law or to promulgate    rules for an
agency's administration of the laws it is charged to carry
out. Adopting legislation is a matter for the legislature.
Where the legislature has properly delegated to an admini-
strative agency the quasi-legislative power to adopt rules



     1. &g Ins. Code art.     21.28-D, 5 5(8), defining   "im-
paired insurer."

     2. You request letter, on page 1, characterizes    your
request as for "an opinion which setsout the definition   of
'resident' for the purpose of TEX. INS. CODE ANN. art.
21.28-D."




                              p. 6478
Mr. A. W. Pogue - Page 4   (JM-1223)


                                                                  ?


for the administration of the law the agency is charged   to
carry out, promulgation     of those    rules, within    the
parameters of applicable law, is properly a matter for that
agency. We cannot provide a comprehensive     definition  of
Vesidence" which will apply in all possible situations that
may arise. Nevertheless, we offer the following discussion
to assist you in carrying out the purposes       of article
21.28-D.

     You note in your brief, citing Prince v. Inman,     280
S.W.2d 779 (Tex. Civ. App. - Beaumont 1955, no writ) and
DeLeon v. Harlinaen Consol. Indev. School Dist., 552 S.W.2d
922 (Tex. Civ. App. - Corpus Christi   1977, no writ),  that
the definition of the term "residence" varies depending   on
the context   of its usage and that its meaning        in a
particular statutory  context depends on the legislative
purpose behind the statute.

       You point out that several authorities    have distin-
guished between     the terms Vesidence"     and   "domicile,"
indicating that "residence" means that a person is present
and "living" in a particular      locality, while   UVdomicile"
includes the additional     element of intent to make that
location a "fixed" and "permanentl@ home. See Snvder v.
Pitts,   241 S.W.2d  136 (Tex. 1951)3; Skubal v. Skubal,   584
S.W.2d 45 (Tex. Civ. App. - San Antonio 1979, writ dism'd)
(and authorities cited therein).    In construing the meaning
of the words "permanent    residence" in an insurance policy,
the court in Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 2ii
S.W.2d 161 (Tex. Civ. ADD. - Dallas 1948. writ dism'd)
stated that a person "may&have as many residences as he may'
choose, but can have but one domicile."

     Nevertheless, it appears that where the legislature has
defined 'Oresidence,V@it has generally equated the term with
domicile.   The Election Code defines      "residence,"  for
purposes of that code, to    mean "domicile,  that is, one's



     3. Interestingly, the court in Snvder, s!4Ix2, held
that since the purpose of the venue provision under consid-
eration in that case was only to prevent inconvenience    to
parties not regularly present in the county where suit was
brought, the term "domicile,"   as used in the provision,
meant only lVresidence" -- in-.e.,requirement of the element
of intent to make the locan        a permanent  home was not
necessary to serve the purpose of the statute.
                                                                  -.,




                              p. 6479
    Mr. A. W. Pogue - Page 5      (JM-1223)




    home and fixed place of habitation to which he intends to
    return after any temporary absence." Elec. Code 5 1.015.
    In defining l'residencellfor purposes of provisions         dealing
    with the interception and use of certain           communications,
    article 18.20, section 1(13), of the Code of Criminal
    Procedure,   though not using the term "domicile,*' uses
    language substantially equivalent    to that in the Election
    Code definition.   Education Code section 54.052 also defines
    residence, for purposes    of determining    tuition      rates at
    institutions of higher education, as domicile.        We note that
    the Arizona Supreme Court in St. Joseoh's Hosv. & Medical
    Center v. Maricova   County 688 P.2d 986, 991 (Ariz. 1984)
    stated that, though the te&ns residence and domicile are not
    synonymous at common law, that jurisdiction          at least had
    "generally treated the      statutory usage         of the     term
    'residence' as carrying the same connotations         as the term
    'domicile.'"    See also 37 T.A.C.      5 15.1(Z),       (3)    (the
    Department of Public Safety rule equating          residence   with
    domicile for purposes    of driver's   license requirements);
    Attorney General Opinion JM-1212    (1990) (discussion of the
    meaning of the term Vesidence" in provisions of Government
    Code section 496.054      regarding prisoner        work    program
    facilities).

         Using a definition    of "resident"    for purposes   of
    article 21.28-D which would permit a person, in the words of
    the Switzerland Gen. Ins. Co. opinion, referenced above, to
    "have as many residences as he may choose" would, we think,
    clearly lead to untenable results. Section 3 in subsection
    (l)(b)(ii) provides that an owner or certificate holder of a
    covered policy is covered   if he is a resident at the time
    the insurer becomes impaired.    See also id. § 3(2)(d).   We
    do not think that the Texas legislature or that of any other
    state having adopted similar provisions would have   intended
    that a person could have **residences11in all of such states
    for purposes of the provisions.   We think that the scheme of
    article 21.28-D, and particularly of section 3, contemplates
    that a person may not be considered to be a Vesident@'     of
    more than one state at a time for purposes of the article.

         You suggest in your brief that in light of the provi-
    sion of section 4 of article 21.28-D that it "shall be
    liberally construed to effect" its purposes, the term "resi-
    dent" as used in the article should be read to bear     "its
    simplest meaning:  a person living and physically    present
    within the borders of the State of Texas." We are unsure of
    the import you attach to the requirement       of "physical
    presence" in your definition. We do not think that any
    definition of "residence" for purposes of article   21.28-D,
P




                                     p. 6480
Mr. A. W. Pogue - Page 6   (JM-1223)



                                                                7

whether equating the term with domicile or otherwise,   could
require uninterrupted physical presence.   See. e .o    Elec.
Code 5 1.015 (language regarding 'temporary absence"'in   the
code's definition    of 'residencen as ndomicile,'l quoted
above). As a brief submitted      in connection    with your
request by an insurance company points out, taken literally,
the definition  of Vesident"   you proffer would exclude a
person domiciled in Texas but travelling out of state on the
relevant date from the protection  of the article, a result
which we cannot imagine the legislature would have   intended
and which, moreover,    would probably    unconstitutionally
restrict the fundamental right of interstate travel.     See.
e.s., ShaDiro v. ThOmosOn, 394 U.S. 618 (1969).

     We note that the insurance company's    brief offers   a
definition of "residence" quoted from Snvder, suora:

           1. A fixed place of abode within         the
        possession [fee or leasehold estate] of     the
        [person claiming residence]

           2. occupied or intended to be occupied
        consistently over a substantial period of
        time

           3.   which is permanent rather than   tempo-
        rary.

See Snvder at 140 (parenthetical language added by briefer).

     While we do not quibble with the Snvder court's
definition, which was in fact of the term V*domicile*'as used
in a venue provision, we do not agree with the suggestion in
the parenthetical language, added in the insurance company's
brief to the quoted Snvder definition, that a resident must
have a possessory    interest   in the claimed      residence
tantamount to a "fee or leasehold estate." We find nothing
in the language of article 21.28-D or in the legislative
history which suggests that the legislature      intended to
impose such a requirement on persons who might be entitled
to protection under the article. Nor do we see how such a
requirement would serve the purposes of the article.    While
evidence that a person  rented or owned a home at relevant
times under the article might be usefully     considered   in
making findings as to whether the person was a resident    at
such times, such factors should not in themselves be taken
as conclusive on that issue. See. e.o    Pitts v. Bl ack, 608
F.Supp. 696 (DCNY 1984) (homeless may ciaim as residence for
voting purposes "home base" to which they regularly   return,
                                                                ?




                              p. 6481
       Mr. A. W. Pogue - Page 7   (JM-1223)


,-


       us.. a   public park or shelter):    Cramer     Graham,  264
       S.W.2d 135 (Tex. Civ. App. - San Antonio I,;;, writ ref'd)
       (persons were residents for voting purposes though they "oc-
       cupied habitations consisting  of trailer houses, walled-up
       tents, cabins and shacks . . . on public property").

            We note finally in regard to your first question     that
       we agree with the argument in your brief that whether        a
       person holds a Texas driver's license is in itself an
       inadequate indicator of whether that person is a "resident"
       for purposes of article 21.28-D.      Subsections (d) through
       (0   of  section  3  of   article   668713, V.T.C.S.,  exempts
       "non-residents" from the requirement of obtaining a Texas
       driver's license. As noted above, the Department of Public
       Safety, by rule, defines "resident" for purposes of article
       6687b as a "person whose domicile is in the State of Texas."
       37 T.A.C. § 15.1(2). But whether a person obtains-or     fails
       to obtain a driver's    license under article 66871, is, we
       think, simply an unreliable    indicator in itself of whether
       he is in fact a "resident :I for purposes of article  21.28-D.
       The person might have claimed Texas residence and obtained a
       driver's license under article 6687b though he was not in
       fact a resident, or he might have failed, through     inadver-
 /-‘   tence or otherwise,  to obtain a license though he was in
       fact a resident  and thus required as a driver under that
       article to obtain a license.

            The same may be said with regard to, for example,
       whether and where the person     in question  is a registered
       voter, whether   he has registered his automobile     in this
       state or elsewhere,   or whether   in other contexts such as
       court proceedings, he has indicated Texas or another place
       as his residence.   Factual evidence   in regard to the above
       matters may assist the association -- should a full factual
       investigation as to the issue of residence be called for in
       a particular case -- in making its determination.    But none
       of these factors should in itself be taken as conclusive    on
       the issue of "residence" for purposes     of article  21.28-D.
       See Attorney   General Opinion JM-611 (1986) (residence of
       persons who winter in Texas for purposes of voting,    vehicle
       registration, etc.).

            We turn now to your second question: whether a person
       must be a "legal" resident of Texas -- that is, a United
       States citizen or an alien legally residing in this country
       under federal immigration  laws -- in order to be a Texas
       resident for purposes of article 21.28-D. You conclude    in
       your brief that he need not be, and that therefore it is not




                                     P. 6482
Mr. A. W. Pogue - Page 8    (JM-1223)




necessary for the association  to determine the citizenship
or immigration status of a person for purposes of deter-
mining his "residence" under the article. We agree.

     We think it is well established that a provision      of
state law requiring residence does not preclude an alien,
whose presence in the state is otherwise of a residential
character, from receiving benefits under the provision, even
though the person may not have the legal right, under
federal immigration   laws, to be in this country.        See
Attorney General Opinions JM-1021 (1989) (resident illegal
aliens not excluded from coverage under Indigent Health Care
and Treatment Act): JM-962 (1988) (Texas Commission for the
Blind may not deny services to visually handicapped children
or vocational rehabilitation services to adults because    of
immigration status);   see also St. Joseoh's HOSD. & Medical
Center v. MaricoDa   County, suora  (undocumented aliens may
gualify as countv residents under statutes mandatina     that
county-reimburse- private hospital for emergency     care to
indigents);   Commercial  Standard  Fire & Marine    Co.   v.
Galindo, 484 S.W.2d 635 (Tex. Civ. App - El Paso 1972, writ
ref'd n.r.e.) (person residing in this state whose entry may
be contrary to the immigration   laws is not barred, by that
reason alone, from receiving workers compensation benefits).

     We find no indication in the residence requirements    of
article 21.28-D or in the legislative      history  of those
provisions that the legislature    intended citizenship     or
legal immigration status to be prerequisites to "residence"
for purposes 'of those provisions.   Whether   it could have
constitutionally imposed such requirements had it wished    to
do so is, moreover, highly questionable.   See e,lvler v. Doe,
457 U.S. 202 (1982) (Texas statute withholding funds for
public education of children not "legally admitted" into the
United States violates   equal protection    clause of U.S.
Constitution).

                       SUMMARY

           The Life, Accident,  Health, and Hospital
        Service Insurance Guaranty Association,     in
        its "plan of operation," or the commissioner
        or State Board of Insurance, by rule, have
        authority to define, within legal parameters,
        the terms "reside" and Vesident@@ as they are
        used in Insurance Code article 21.28-D.

           The provisions   Of   section 3 of      that
        article requiring that   certain persons   have




                              v. 6483
,
.
        Mr. A. W. Pogue - Page 9      (JM-1223)




                been residents  of Texas at relevant dates
                under the article in order to be entitled  to
                protection under the article do not require
                that those persons have at such times been
                United  States citizens   or aliens   legally
                residing in the United States under   federal
                immigration laws.




                                              J *a
                                              Very truly y   s,

                                                   M,
                                              JIM     MATTOX
                                              Attorney General of Texas

        NARY KELLER
        First Assistant Attorney General

        LOU MCCREARY
        Executive Assistant Attorney General

        JUDGE ZOLLIE STEAKLKY
        Special Assistant Attorney General
    P
        RKNEA HICKS
        Special Assistant Attorney General

        RICK GILPIN
        Chairman, Opinion Committee

        Prepared by William Walker
        Assistant Attorney General




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