f   .




    Honorable         Ernest          Guinn
    County       Attorney
    El   Paso       County
    El   Paso,      Texas


    Dear     Sir:                                                                     Opinion          No.     O-3739
                                                                                      Re:      Construction              of “resident
                                                                                               of this        State”        in motor          vehi-
                                                                                               cle     use     tax;     Article        VI,       House
                                                                                               Bill     No.       8, Acts       47th Legisla-
                                                                                               ture,        Regular          Session.


                    We     are     in receipt         of your       request           for    an opinion             by this     department,
    in which        you    submit          the following         question:


                             *An      employe~e         of the United           States        Border           Patrol        was      trans-
                    ferred       to Texas          in May,       1940.        He      has     lived     in Kansas             eleven
                    years,       and for       the past         three    years         has      owned         his     own     home
                    there,       which       he still     owns      but is now              occupied          by a tenant.             He
                    has     voted      in Kansas         every        year     for      the last. eleven              years,         except
                    last     year,     andsays-         that he would              have       voted         there     last     year        but
                    for    the fact         that he was         out of the State               on election             day.      He     is
                    now      occupying         a rented         house        i,n El     Paso.         Employees               in this
                    service          are    subject      to transfer           at any        time      and are          in fact       fre-
                    quently        transferred,           it being       very        unnaUn1          for    an employee              to
                    remain         in the     same       place      more       than         about     two     years.          This
                    particular             employee       was     to have        been        transferred              to New         Mex-
                    ico within         the last       few     days,     but the transfer                    was     canceled          at
                    the last         moment.


                             “While         on a trip     to Kansas            recently         this        man      bought        a used
                    automobile,             on which        he paid      the Kansas              sales        tax.      He     drove         the
                    automobile             to El   Paso       and     upon being             notified        that his         transfer
                    to New       Mexico        was      canceled        he applied              for    Texas          registration               of
                    the automobile.


                             “Is he a ‘resident’                of Texas        within         the meaning              of the recent
                    statute        imposing        a use      tax     upon anautomobile                       brought         into this
                    State     by a ‘resident’            ?*                                   ‘\_
Honorable        Ernest           Guinn,        Page       2, O-3739




                        Section          1 of Article            VI,    House      Bill     No.        8, Acts         47th Legisla-
ture,   Regular         Session,           levi.es       a tax     upon every             retail       sale     of every             motor           ve-
hicle   sold     in this         State,     at the rate           of 1 percent             of the total             consideration                   paid
or to be paid          to the seller              by the buyer.


                        Section          2 of said        Act     levies        a tax     as follows:


                        “The,re          is hereby         levied        a use tax         upon        every         motor         vehicle
               purchased            at retail          sa1.e outside            of this     State       and brought                  into this
               State       for    use      upon the public               highways          thereof           by a resident                of
               this    State        or by firms                or corporations              domiciled                or    doing        bi$g’i-
               ness      in this         State.      Such        tax    shall    be equal           to one       (1) per           cent        of
               the total consideration                         paid     or to be paid            for    said         vehicle         at said
               retail  sale.  The tax                    shall        be the obl.igation               of and be paid                by the
               person,           firm,     or     corporation             operatkng         said       motor          vehicle           upon
               the public           highways           of thi.s State.”                 (Underscoring                     ours)


                       Section           5 provides:


                        “The       taxes        levied      in thi.s Article             shall      be collected                  by the
               Assessor            and     Collector            of Taxes         of the county               in which             any    such
               motor        vehicle         is first       registered            or first        transferred                 after       such
               a sale;       the Tax         Collector            shall     refuse        to accept            for        registration
               or for       transfer         any       motor          vehicle     mitt1 the tax thereon                       is paid.


                        “When        a tax beco%mes                   du,e on a motor              vehicle           purchased             out-
               side     of this      State        and brought             i.nto this       State       for     use        upon     the high-
               ways,       the person,             firm,        or corporati.on             operating            said        motor         vehi-
               cle    upon        the public         highways            of thi.s State          shall        pay     the tax           imposed
               by Section           2 to the Tax               Collector         of the county               in which             such     motor
               vehicle           is to be registered.                   The     tax     shall      be paid           at the time              appli-
               cation       is made         for      regi.stration            of said      motor         vehicl.e,           and the Tax
               Collector           shall     refuse        to issue         the registration                  l.i.cense        until      the
               tax is paid.‘”


                       In 54 C.           J. § 1, pa 712,              it i.s stated:


                       *Although            there        are     many      definiti,ons            to be found              i.n the books,
               .it is not easy             to give       a satisfactory               definition         of this           term,        for     it is
               flexible,          somewhat           ambiguous             word,        used       in many           and      various           senses,
               with the sense  in which it should be used                                        controlled               by reference     to
               the object, thus having  different meanings                                        according                to the context,
               or the subject               matter         under        discussion.             It has        a great         variety           of
Honorable            Ernest           Guinn,           Page      3, O-3739




                   meanings.                 It is difficult            to give        an exact              definition         of what         is
                   meant         by     ‘resident’             as    use~d in particular                     statutes,         for,     although
                   often        construed              by the courts,               the te,rm           has      no technical             mtan-
                   ing,    but     is differently                   construed          in courts              of justice,           according
                   to the purposes                     for    which          inquiry        is made            into the meaning                  of
                   the term.                The      construction              is generally               governed             by the con-
                   nection         in which            the word              is used,       and the meaning                     is to be de-
                   termined             from         the facts         and circumstances                         taken       together           in
                   each     particular                 case.”


                           Sometimes                   the term          residence               is used        synonymous               with        domi-
cile    and a “resident”                      may       be one having                his    domicile             in a particular                place.
At other         times          the term           has        reference          to a person                 living      in a particular                local-
ity without           reference               to his         domicile.           The       difference            has     been         expressed              as
one of “actual              residence”                 and      “legal        residence”            and         it has       been      said     that     a per-
son     may      have       his       legal       residence            in one        place        and his         actual        residence              in an-
other.        15 Tex.            Jur.       p. 710,          63; O’Rourke              v. Fort           Worth        Star      Telegram,               19 S. W.
(2d)     136; A. H.             Belo        Corporation               v. Granberry,                9 S. W.            (2d)     443;     Taylor         v.
Wilson,        93 S. W.            109.


                           Use        and      other         compensating               taxes       are        fr.equently           enacted          along
with      retail        sales      taxes          as    supplementary                  or    complementary                     thereto.              Aside
from      their         obvious          revenue             producing           object          they     are     also       designed           to prevent
sales      tax     avoidance                through           outside         purchas,es,           and to place               local      business                on
even      terms           with     interstate                commerce            and prevent                 discrimination               against            local
merchants               in favor            of competitive               merchants                in other         states.            Pacific         Telephone
& Telegraph                Company                v. Henneford,                (Sup.       Ct.    Wash.          1938),        81 Pac.          (2d)    786,
790;     Continental              Supply           Company             v. People,            (Sup.        Ct.    Wyo.         1939)      88 Pac.             (2d)
488,     490,      Fifteenth             Street         Investment              Company             v. People,               (Sup.     Ct.    Colo.          1938)
81 Pac.          (2d)     764,        766; Henneford                   v. Silas        Mason            Co.,     Inc.,       300 U. S. 577,              57
S. Ct.      524,        81 L.      ed.        814.       It would            seem      to be apparent                   from     the statute             itself
that the use              tax     levied          by House            Bill     8 is closely              related         to the retail               sales        tax
on motor            vehicles            and has          for     its purposes               those        considerations                 herein         above
pointed        out.


                            After           careful          consideration              of the provisions                     of the above              statute
and the        purposes               for     which          it was      enacted,           we     are       of the      opinion        that     the Legis-
lature        used        the phrase              “resident            of this       State”        in the sense                of a person’s                 ‘actual
residence,”               and     not in the             sense        of his        domicile            or     “legal        residence.”               Such         con-
struction   would  seem to be more    in harmony with the apparent                                                                    purposes   of the
Legislature    in enacting the use tax, and would tax those whose                                                                     use of the high-
ways       might        be expected                to be more                or less        continuous.
                                                                                                                              -




Honorable        Ernest       Guinn,     Page    4, O-3739



                              Having      determined       the meaning       of the term           “resident”            as       used
     in the statute,           its application        to particular      individuals        becomes          a question                of
     fact    to be determined             from      al1 the facts     and circumstances              in each        particular
     case.        This      department       is not authorized          to pass    upon questions             of fact,            how-
     ever,       we w,ould      point     out that    under   the facts     you    outline,      this      individual             has
     lived       in Texas      since     May,    1940,    and while      he may      maintain        his    domicile              in        .”   :
     Kansas        and may       in the future         be transferred       from     Texas,        from      all    that appears
     in your       letter     it is his    present      purpose     to remain       here      indefinitely,


                              Assuming       that    yo,ur letter     presents      all   the facts,        we     are    of the
     opinion       that this     individual      is a resident        of Texas      within       the meaning             of Article
     VI,    H.    B. No.      8, Acts     47th Leg.,      Regular     Session.


                                                                                  Yours     very    truly


                                                                         ,ATTORNEY            GENERAL              OF         TEXAS




                                                                                  Cecil     C.   Cammack
                                                                                             Assistant




           ATTORNEY             GENERAL


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                                                                           OPINION



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