                                The Attorney          General     of Texas_
                                                Ocmber 22, 1985
JIM MATTOX
Attorney General


Suprm CourtBulldlno            Eonorable Lloyd Crlm                   Opinion   lo.   St-367
P. 0. Box 11548                chairman
Auetln. TX. 7671% 2S4S         Committeeon Labor ,md                  Re: Resldeucy status of a student
5121475-2501                      EmploymentRelations                 whose parent   is assigned out of
Tblax 91011)74-1387
lekopler 512147502ea
                               Texan House of Reprcsentativea         state by the United States Public
                               P. 0. Box 2910                         Eealth Service
                               Austin. Tutaa   78715!)
714 Jackson. Sulte 700
OaNae. TX. 7S2024508           Dear Representative Cries:
2141742-0944

                                     You advise us I:hat a commissioned officer of the United States
4S24 Albert* Ave.. suits IS0   Public Bealtb Service has contacted you for :clarificatlon     by this
El PIso, TX. 7ea52793          office of the Texas residency requirements for purposes of resident
SlYSM4S4                       tuition at state institutions of higher education. The Public Health
                               Service officer has ‘been aasigued to duty lu Maryland since 1982. We .
,..+I Texes. SuIta 700
                               uuderetand that both before and after her entry into the Public Bealth
Ho”eml. l-Y.. 77w2-3111        Service, and until,,L982. the officer had resided for many years in
712n235SS6                     Galveston, Texas.    A state university has classified   the officer's
                               daughter aa a nonre:3!ldentstudent for tuition purposes.
806 Broadway. Suite 312
L”bbc.ck, TX. 79401-3478
                                     The Texan Educ:a.tioa Code makes a distinction between residents
ew-747.523S                    and  nonresidents of the state in prescribing the rates of tuition for
                               students registerin:  at the state's institutions of higher education.
                               Educ. Code 154.051. The code specifies that for tuition purposes
4306 N. Tenth. Suite S         "residence" meana "dcmaicile." Id. 154.052(a).    An individual who is a
MeAllen, TX. 78501.1685
512lSS24.547                   dependent and vhose family is domiciled In another state is classified
                               as a nonresident student.     Id. 554.052(c).  The issue in question ie
                               whether Texas is thqzdomicilcf     the Public Health Service officer who
 MO Main .fla.?a. Suite 4M)    was assigned to duty in Maryland in 1982 and involves fact questions
 sari Antonio. TX. 78X5.2797
                               which we cannot c;~c:egorically answer in the opinion process.        We
 WX225-41Ql
                               conclude, however. that for tuition purposes a Public Bealth Service
                               officer does not lcse A domicile or acquire a nsv domicile solely by
 An Equal OpportunitYI         reason of the fact xbat the officer is involuntarily transferred to or
 Alflrm4We A&on Employer       atationed in line o:i duty lo a place outside of Tekaa.

                                     Section 54.053 of the Education Code provides that each institu-
                               tion required to charge A nonresident tuition fee is subject to the
                               rules. regulations.   and interpretations  issued by the Coordinating
                               Board, Texas College and University System, for the administration of
                               the code's nonresident tuition provisiona.    The Coordinating Board's




                                                            p. 1681
BouorAble Lloyd Crisa - Page! 2 (JM-367)




rules And regulations for &aterm.ining residence statul, pursuant to
Title 3 of the Ta.6 Education Code, provide the,folloving:

               (d) Legal rec$dence of peraou in ailita~
          service.      A person in militmy eervice is presumed
          to maintain during his or her entire' period of
          active aswice th'a same legal residence which was
          in effect        At t'hlctime of entering military
          service.        A per son statioued in s et.te            o*
          military service is presmed not to est8blish a
          leg81 residence ia that state            becAuse his or her
          presence is not voluntary but under military
          orders.       It is possible          for A member   of the
          mi1it.v       service     to abandon the douicfle         of
          original     entry into the service and to select
          another, but to show establishr.ent of a neu
          domicile during t'he tern of active service, there
          muat be clear tutd unequivocal proof of such
          intsrlt.     An extended period of sewice alone is
          not     sufficient.       The purchase of residential
          property is not c~uclusivs evidence unless coupled
          with other f8cts fndicating an intent to put down
          roots in the cosunmity and to reside there after
          termination of ml.l.itary service.            Evidence which
          will ks considsrc:d, in determining this requisite
          Intent includes, but is not limited to a sub-
          stantial       investment In a residence and the
          claiming of A hosestead exemption thereon, regis-
          tration to vote. and voting in local elections,
          regiatrAtiO0      of 811Automobile in Te%Ae and pAyment
          of personal propwrty tares thereon, obtaining a
          TWCSt3 driver's          :Licenae. maintaining checking
          8CCOUIlt.S ,    SAViUgll   ACCOUUtLI.    and safety deposit
          boxes in Texas banks, existence of wills or other
           legal docusents fndicating residence in Texas.
          change of home-of-record And designation of Texas
          as the plAce of ILeg. residence for income t8%
          purposes on mili~xry personnel records, business
           trensActions or a:ftivities not normally engAged in
          by military per6conel. nembership in professional
           or other state arganizations. and marriage to a
          resident of Texas.           Purchase of property during
           terminal years of military               service  preceding
           retir-t        gsnsrally is given greater weight than
           A similar purchase uade prior to such terminal
          period.

19 T.A.C. 121.24(d).




                                   p. 1682
WnorrblrLlqd Crirr - haa 3                (JM-367)




      Dnlilu    tha    ti@t      which ir uproaaly        cruted     by atatuta      that
pormitr    cortdu        dlitAry      perronnol and their dapsndAntr uho aro
ckreified          es uonrrridmtr          to pay roaidont         tuition    at   Qxer
univoraitior      ,  the procqlticn        of la@     roaidencs Aud daricila        of A
pore08 im mfliteq lo M k 0,                 M lta to d   in the above ruler            and
royletionr, h8r hem developedby tba court&                       kctioo 54.058(b) of
the Eduution           Coda up~,aaaly Authoriroa ths p8ymant of teaident
tuition by officere end anliated peraonuel of the Arq,                    Army ReaeT(re,
Army National Gourd. Nr IlatiouAl Guard, Tex~a State Guerd, Nr Force,
Nr Force Reeerve. 1807~               H8vy   Remera, Urina       Corps. Xariua Corp.
Reaercte, CoAat Guerd, 01’ Cosat Guard Reserve, laaigned to duty in
TUAO, And their apouaea ,kndchildrm, without regard to the length of
 tfme thAt thq hAve been waigned to duty or rsaided within the atAte.
 It la vell lettled that          the lxprsaa snumration of A particulAr thing
 in A lt8tute is t8ntawur.t to Au exvrsas excluaio~ of 811 othera.                        E%
parte UcIver, 586 S.Y.2d 851, 856 (Tax. Grim. App. 1979); Peterson r
 CAlvert. 473 S.U.2d 314:, 317 (Tar. Civ. App. - Austin 1971. writ
‘s             Carp v. Tex~a ts,ate Doard of Nxaminerr in Optometry
 S.U.2d 639 642 (                             - Dallu   1966). lff’d 412 S.W.id %
  (Tu.       1967;. ,,.‘zot&           zL.1      Opinion V-150252).              While AU
 officer       in thexited       St&em Public Health Service la excluded from
 the statutory         right    to pay      resident tuition granted by section
 54.058(b),       ue believe      that    exclusion under tbAt statute does not
 determine the question before us.

      The TUAO statute definea “residence” AI “domicile,” but the
mAnner of determining dtndclle la not specified by statute,   And we
muat rely on judicial     construction.  Except where specified   by
statute.  the courta how dsveloned the concept of “domicile” for
v8rioua~purposea.   In Pewa 6 D.T: Ry. Co. v. Thompson.167 S.W. 801.
803 (Tex. 1914). the?&Aa      Suprema Court defined domicile In the
folloviBg 1Angu.ge:

                  ‘Residence’ meActs living     in 8 p8rticul.r
               lOC.lity,  but ‘domicile’ means living in thAt
               loc8Iity with the intentto m6ke it A fixed end
               permanent home. Rcaidcncs simply reqnirsa bodily
               preaencs aa an :LnhAbltant in A given place. while
               dcmicils requlr~ea bodily presence in that  plAce.
               and 8160 an inl:ention to make it one’s domicile.

 The TUAS    Suprems Court II:LSOhas orated thet “volition, intention, and
 Action Are 811 elamenta to be considered in determining . . . per-
 manent residence or do&::tle.”      Mlla v. Bartlett, 377 S.W.2d 636, 637
 (Ta.    1964). Although it largely dependa on ths present intention of
 the individuA1. domicile is not determined br intention Alone.         See
 Oweua V. stoPAils    64 S.V.:ld 360, 362 (Tax. CiV: App. - WACO 1933, vrit
 ref’d).    The concurring opinion In Stifel v. Dopkina, 477 F.2d 1116,
 1127 (6th       Cir.   1973).    states   that   “[tlhs   tvo   fundamental




                                        p. 1683
                                     ,
iionorablo Lloyd Criaa - Page eb (JM-367)




coualdarations  in astabli&ing     domicile  for  purposee of   state
citlreuahip are residence ilr the etate and intention to remain there
permaneutly.”

     As reflected by the Coordinating I)oard’a rulea and regulatioua
for datemining residence el:a.tu&. it hae loug been established by the
courta that persona in milita r ylexxice are presumed to maintain
durtng their entire period of active lervicc the sama legal residence
that was in effect at the tims of enterlue” dlitarv
                                                ~~~~~~~, service.
                                                           ~~~ ~~~~ In
Gallagher v. Gallagher, 215 8.W. 516, 518 (Tex. Clv. App. - San
Antonio 1919, IIO vrit). the court stated:

             Ordiuarily,   it is a presumption of lav that
          where a persou ac,tually lives is his domicile,
          such presumption IB!~course being rebuttable; but
          uo such presumpttim could arise In the case of a
          soldier In active service, who has DO choice of
          daoicile.   but muimt ordinarily    cling    to his
          domicile of origlm.: ?rdlnarlly.  au act of r-al
          to e certain locu:!lou; coupled with the intent to
          make a permaueot residence       there,   right  be
          sufficient to fix a domicile, but that is because
          the r-al      is voluntarily made, vbich could not
          occur in the case of a soldier in active service.

The Texas Suprame Court, III Commercial Credit Corporation v.   Smith,
187 S.W.Zd 363, 366 (Tax. 1345). reiterated that presumption:

             A soldier or sailor does uot acquire a uav
          domicile   merely frown being     atatioued  at   a
          particular place in liue of duty.      His domicile
          remaia~~ the same ss that which he had when he
          entered the service, unless he shows a change by
          proof of clear anti unequivocal intention.

See also Stlfel v. Eopklua. I-,     Kinsel v. Pickens. 25 F.Supp. 455.
,456.      Tex. 1938) and T&S   cases cited therein; Wilson v. Wilson,
 189 S.W.2d 212 (Tu. Civ. &P. - Fort Worth 1945, no writ).

      Attorney General Opin.ion S-95   (1953)   discusses  residency
requirements for resident ‘xition In Texas.   In that opinloo, this
office stated:

             In the absence of a claar intent to abandon his
          domicile in the state from whence he came and to
          establfsh a uaw dfnnicile in the state in vhich he
          serve*, a person ill the military service does not
          acquire a dom%cil#!in the latter state.




                                p. 1684
Eoaorable Lloyd Cries - Page 5 (JE-367)




See also Attorney   General Opinion O-1459 (quotlug from Conference
Opinion No. 2971, dated Jamary 10. 1936, Attorney General’s Reports
1934-1936. at 114. directed to Dr. H.P. Benedict concerning residency
requufreuents for army 0ff:ksra    for tuition purposes).    Conference
Opinion No. 2977 expressed i.h.8opinion that unless an anay officer had
some reason to change his douicile, which would have to be coupled
with both facts and intentic~u..his domicile would be that of his legal
residence at the tiue he enmred the anay.

     We are oat avare of amy case in which the court dealt expressly
vith the Issue of the doulc:lle of a Public Health Service officer
while serving on assigned duty outside the state of the officer’s
domicile on original entry lute the Public Esalth Service.    It is our
opinion, however, that a court would find that  the aaue presumption of
legal residence and domicile which applies to persona in military
service also applies to offj.cers of the Public Health Service.

      Ordinarily, the United States Public Eealth Service is a civlllan
service in the Departuent of Eeelth and Euuan Services.              It  is.
however, part of the armed forces of the United States and a military
service when incorporated into the armed forces by executive order of
the President in time of war or an emergency proclaimed by the
President.     42 U.S.C. 1217. With respect to active service performed
by commissioned officers of ,the Public Eealth Service In time of war,
while on detail for duty wi1:b the Army, Navy, Air Force, Marine Corps,
or Coast Guard, or while thl! Service is part of the military forces of
the United States pursuant 1:~~executive order of the President, Public          .
Health Service officers        arc  entitled  to many of the rights and
prlvllegee    provided by fedwal law for caiaaioned         officers  of the
Army. 42 U.S.C. 1213(a). Public Health Service offlcers detailed for
duty with the Army. Air Force, Navy. or Coast Guard are subject to the
laws for the governmentof ldre service to which they are detailed.        42
U.S.C. 1215(a).      The Preeida:nt prescribes regulations with respect to
the appointment, promotion, retirement. termination of commiaeion,
titles,  pay, uniforms. alloanncea. and discipline of the commissioned
corps of the Public Bealtb Service.           42 U.S.C. 1216(a).     Federal
statutes expressly consider active service of coaaaissioned officers of
the Public Health Service 1:o be active ailitary       semice for specific
purposes.     Active    service of commissioned officers     of the Public
Eealth Service is deemed to be active military service in the armed
forces of the United States; for the purposes of lavs administered by
the Veterans’ Administration and for purposes of all rights, privi-
leges,    immmitiea , and b’enefits provided under the Soldiers’             b
Sailors’ Civil Relief Act of 1940. 42 U.S.C. 1213(d), (e).               See
Wanner v. Glen Ellen Corporation, 373 F.Supp. 983 (Vt. 1974). For
purposes
_   _       of the program
                      .  -     of militaq    medical benefits provided for
members of the uniformed services and their dependents, “uniformed
services” expressly means the armed forces and the CommissionedCorps
of the National Oceanic 6 Atmospheric Admlnlstration and of the Public




                                   p. 1685
Eonorable Lloyd Cries   - Pego 6    (JM-367)




Eeelth  Service.   10 U.S.C. 11072(l).     A member of   the uniformad
eervlcea who ia on active ducjr io entitled to udiul    and dental care
in eu9 fac+lity of any uuiformed service.   10 U.8.C. 11074(a).

     The Eighth Cfrcuic   Court of Appeela baa stated:

           We are conviuced that the relevant couditious of
           service in the Public Eealth Service are very
           similar to those io the armed forces and demon-
           strate an equally apeclel relationship and need
           for discipline.

                For example, t,he PBS is designated as one of
           the ‘uniformad aerrricas’       along with the armed
           forces      and the      Comiaaioned     Corps of     the
           Environmental Scitmce Services Administration.         10
           U.S.C. 51072 (1970).        The PBS  is  organiaed  along
           military     lines.    each officer     grade having a
           statutorily     stated ‘military rank equivalent.      42
           U.S.C.     1207 (19i’CI).    Regulations specify that
           failure to follow out orders of auperlor officers
           till    result in iliaciplinary     action.    42 C.F.R.
           1f21.261-84.(19?3:.       In addition, PFiS officers are       -.
           assigned to actiw duty statue and are subject to
           recall to duty during any period of leave.             42
           C.F.R. 5121.88 - 91, (1973). These similaritlaa to
           military service ~.l.luatrate how the concern voiced
           in [the] Peres [cclse] regarding the effect of tort
           suits ondiscipllne        and internal atkucture apply
           with equal force 1x1 the Public Eealth Setvice.

Alaxander v. United States,  500 F.2d 1, 4 (8th Cir. 1974). See also,
Levin v. United States. 403 F.Supp. 99. 103 (Mass. 1975). In Levin v.
United States, vhich is a :suit against the government for service
connected injury to a Public: Eaalth Servfce officer, the federal court
stated:

           No less than the Id.litary, this uniformed service.
           specially creeted by the sovereign, ia out of the
           normal stream of t:he c-       law. The same unfair-
           ness vould occur in applying ‘the lav of the
           place’ to P.E.S,     officers,    who have no more
           control over theL:r duty stations than military
           men.

-Id. at 103.
     For purposes of Texa#. resident tuition.    no state or federal
statute expressly determinell the domicile of an officer of the Public




                                    p. 1686
Eonorable Lloyd Criss - Page! 7    (JM-367)




Eealth Service who involuntarily    is assigned by tha Public Ilealth
Service to duty outside of Texas. The court in Lavin v. United States
concluded that “there  is ok reasonable way. in lav or in logic. to
distinguieh the position ol the Public Eaalth Service officer       from
that of the military man for purposes of tort suits.”    Id.   It is our
opinion that a court also would not distinguish the posiclon of the
Public Eealth Service off1c:e.r from that of the military officer for
purposes of domicile and, if asked, would find that the positions of
both create a presumption t.b.at such persons , when transferred to and
involuutarily assigned to duty in a state, ere not presumed to have
established a legal residewe     in the state where their presence Is
involuntary.

     Such a presumption, however. may not be true in fact and la
rebuttable by clear and unequivocal proof that the person intended to
abandon the domicile of original entry into the service and to select
another domicile.     See Aworney     General Opiuion R-559 (1975).
Intention is an ensen=      cooalderation in determining domicile, and
the solution to each partiel:ler cese must depend on all the facts end
circuuatancea which tend l:o support or to negate an intention to
establish or to abandon a domicile.    Domicile clearly involves issues
of fact,   and this office     is not equipped to make such factual
determinations in its opintm process.

                              SUMHARP

             A court wouli, probably not distinguish     the
          position of a Public Realth Service officer from
          that of a military       officer  for purposes of
          domicile but vould rather find that the positions
          of both create a presumption that such persons,
          when transferred to and involuntarily assigned to
          duty in a state, are presumed not to establish a
          legal residence in that state when their presence
          there   is   lnvol.untary.     The presumption is
          rebuttable by fa;,ts that prove a clear and un-




                                       Very
          equivocal intention to establish a new domicile
          during active servtce.




TOMGRlZR
                                       s h  JIM
                                                 ruly your


                                                 ;,
                                                    HATTOX
                                            Attorney General of Texas


First Assistant Attorney   General




                                  p. 1687
HonorableLloyd Criss - Paga 8     (JM-367)




DAVID 0. RIC8ARD8
Rxecut~ve Asaiatent Attorney   General

ROBBRT&UT
Special Aasiatant Attorney C~eneral
       .\
RICg GILPIN
Chairman. Opinion Comaittee

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COWnITTEE

Rick Gllpin. Chairman
Colln Carl
Susan Garrison
Ton9 Guillory
Jim ~oe~linger
Jennifer Bigga
Nancy Sutton
Sarah Woelk




                                 p. 1688
