Honorable W. Lee O'Daniel
Governor of Texas
Austin, Texas
Dear Sir:             Opinion   NO.   o-3382
                      Re:   Citizenship of
                            B. D. Battle
          Your letter of April 8, 1941, requests the opinion
of this department upon the question whether, under the mate-
rial submitted wlth your request, Mr. Battle is a resident
citizen of the State of Texas.. Your request does not ask
that we give this opinion upon the information submitted with
Tour letter alone, but asks that we base It on these facts
 and other facts which you may find."
          State citizenship is governed by the provisions of
the United States Constitution, Amendment 14, Section 1:
          "All persons born or naturallzed in the
     United States, and subject to the jurlsdlctlon
     thereof, are citizens of the United States and
     of the State whereFn they reside."
          Assuming Mr. Battle to be a citizen of the United
States, his State citizenship depends upon his residence.
The term "reside" has reference to the "domicile" or "legal
residence" of the person, observing the distinction between
actual residence and domicile stated by our Supreme Court in
the case of Pecos, etc. Ry Co. vs. Thompson, 106 Tex. 460,
167 S. W. 801:
          "Residence means living in a particular
     locality, but domioile means living,in that
     locality with the ,intentto make It a flxed
     and permanent home. Residence simply requires
     bodily presence, as an inhabltant in a given
     place, while domicile requires bodily presence
     in that place and also one's intention to make
     it one's domicile."
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Honorable W. Lee O'Danlel, Page 2 (O-3382)


          Two things must ooncur to constitute "domicile:"
First, residence; and second, the intention of making the
place of residence one's home. 15 Tex. Jur. 709. Thus a
domicile once acquired is not lost simply by the rcquisi-
tion of a new residence; the acquisltion'ofthe new resi-
dence must be accompanied by the intentlon to make It
one's fixed and permanent home. Hardy vs. DeLeon 5 Tex.
211; Holliman vs. Peebles, 1 Tex. 673.
          Since the fact of residence plus the factor of
intention are necessary to the determination of the ques-
tion of domtcile, it is obvious that the issue with respect
to each particular case can be resolved only in view of all
the facts of the particular case. The solution of the pro-
blem will not depend upon any single circumstance or group
of circumstances but upon all the circumstances taken in
connection with each other. In instances where the elements
of residence and intention gathered from conduct are ambiguous
or uncertain, It becomes necessary to make a minute inquiry
into the hablts, character, pursuits, social and domestic
relations, business and political affairs of the person. 19
Corpus Juris p. 435. In the case of a single person, ordi-
narlly It Is a fair presumption of fact and law that the
place at which a person actually lives in his dommTcile,such
presumption being of course rebuttable. Russell's Heirs v3.
Randolph, 11 Tex. 460; 15 Tex. Jur. 718; 19 Corpus Juris 431.
In the caseofamarried man, the presumption is that his
domicile is where his wife resides, but this presumption will
likewise yield to a contrary showing of the facts. Fidelity
and Deposit Company of Maryland vs. First Natlonal Bank, 113
3. W. (2d) 622; Stranton vs. Hall 90 S. W. (2d) 865; Hennessey
va. Campbell 32 3. W. (2d) 390; Devereaux vs. Rowe 293 S. W.
207; 17 Am. Jur. p. 639; 9 R. C. L. pp. 557-558.
          With your letter you subaFt the following material:
          1. Affidavit of B. D. Battle in which he certifies
that in 1932 he did come into and did become a permanent resi-
dent of Longview, Gregg County, Texas; that he obtained by
reclproclty from the Texas Board of Public Accountants a cer-
tificate to practice his profession of accounting In Texas;
that In 1932 he was appointed Assistant County Auditor of
Gregg County and served as such untll October 1, 1939; that
Honorable W. Lee O'Daniel, Page'3   (O-3382)


since October 1, 1939, 'hehas,continued to reside'and
                                         /~1 :' ,: z:,
practice his profession in LongvIew, Texas.
          2. Receipt for American Legion dues for 1941,
to Post No. 140, Longview, Texas (paid a-24-40).
               Letter from R    Wyche, ~dountg Auditor,
Longview, &xas    to Senator'J% Hill dat,edApril 5, 1941
recommending co&Yrmati.on of Mr. Batile, stating Mr. B,attie
was his assistant from 1932 to 1939; that since 1939 Mr.
Battle has conducted,an accounting office in Longview; and
expressing his opinion of Mr. Battle's'qualificatlona to be
State Auditor.
          4.   Letter from J. C. Barton, Vice President, and
J. W. McDavid , Cashier, First National Bank; Longview, Texas,,
dated April 5', 1941, stating'their opinion of Mr. Battle's
character and ability, and that since'December 14, 1933, he
has been a customer of the bank and,maFntained an active
checking account; that he practices his profession in Long-
view.

          5.  Letter from Floyd Covingt~on,Assistant Manager,
Longview Chamber of Commerce, to Senator Joe Hill, recommend-
ing Mr. Battle and stating that he has been an active member
of the local Chamber of Commerce for many years.
          6.  Certificate by Mann Fuller, Tax Assessor-Col-
lector, Gregg County, Texas, dated April 3, 1941, stating
that B. D. Battle has been a legal resident and qualified
voter of Gregg County, Texas, since 1933.~

          7.  Certificate by Sheriff of Gregg County, Texas,
that he has summoned'Mr. Battle for jury service between 1934
and 1940.
          8. Poll tax receipt for 1940,dated l,-31-41,issued
to "B. D. Battle, 203 East College, LongvFew,,Texas" by Mann
Fuller, Assessor-Collector of Taxes,~Gregg"County, Texas.

          9. Three commissions to Mr. Battle'as Notary Pub-
lic in and for Gregg County, Texas, for the terms ending
June 1, 1937, June 1, 1939, and June 1, 1941, respectlvelg.
Honorable W. Lee O~'Danle1,Page 4   (O-3382)


            10. Declaration by Buford D. Battle of intention
to stud    law, filed with the Supreme Court of Texas December
15, 193 5 , in which he states his permanent address to be
Longview, Texas.
          While the foregoing facts are not fully developed,
standing alone they indicate that Mr. Battle is a resident
citizen of the State of Texas. However, we are in receipt
of the following information contained in a letter to this
department from Senator Joe Hill:
          "1 . Buford D. Battle and wife are living together
as man and wife.
          "2 . The latest City Directory of the City of
Shreveport, Louisiana, carries listing 'Battle, Buford D.,
Certified Public Accountant, 552 Jordan Street, Telephone
4003, residence 257 Rutherford, Telephone 75920.'
          “3.  The listing In January 1st Telephone Directory
of the City of Shreveport, Louisiana, gives his office at 257
Rutherford, Telephone No. 71531.
          “‘4 . I have a gelegram from the Sheriff of Shreve-
port, Louisiana, dated April 4 as follows: 'Buford D. Battle
signed 1939 poll books. Act 374, 1940, cancelllng signing
poll books for 1940.' (sgd.) J. H. Flournoy, Sheriff.

          “5.  I have a telegram from the Tax Assessor in
Shreveport, Louisiana, dated April 4, 1941, sent at 8%   AM
as follows: 'B. D. Battle llsted in January 1st Telephone
Directory as being an accountant at two fifty-seven Rutherford
Street. Mrs. Battle signed application for homestead exemp-
tlon in this office on April second nineteen forty-one, she
being record owner of the home.' (Sgd.): A. G. Hammett, Tax
Assessor.
i         "I am informed that Mr. Battle has a room which he
occupies at Longview, Texas, and that he maintains an office
there as an Accountant. I am also advised that he has paid
a poll tax In Gregg County, Texas."
_ . .




        Honorable W. Lee O'Daniel, Page 5   (O-3382)


                  The opinion of the Attorney General can be given
        on questions of law only. Disputed questions of fact, or
        mixed questions of law and fact cannot be authoritatively
        decided by the Attorney General. 6 Corpus Juris. p. 811.
        The weight of evidence and the credibility of witnesses
        are not questions to be addressed to or decided by the
        Attorney General. 6 Corpus Jur. p. 812, Note 7%.
                  It is apparent from what has been stated above
        that the facts with reference to Mr. Battle's citizenship
        are disputed. Since this department lacks the authority
        to decide such disputed issues of fact, or mixed questions
        of fact and law, we regret that we cannot give you an opin-
        ion upon the question presented in your letter.
                                          Yours very truly,
                                     ATTORNEY GENERAL OF TEXAS



                                     BY     /s/R. W. Fairchild
                                                R. W. Fairchild
                                                      Assistant
        RWF:ej : mjs
        APPROVED AKI 17, 1941
        /d,y;;~y,",~;p-
        Attorney General

        APPROVED OPINION COMMITTEE
        BY /s/ BWB CHAIRMAN
