Honorable John E. Winters, Executive Director
State Geparlmsnt of Public %lfare
Austin 3, Texas

bar   Sir:                              Opi.niouKo. O-6074
                                        Re: Tnterprstation of residence
                                             requirements for employees
                                             of the I;epartmentof Publio
                                             ?ie?ffare
                                                     under the provisions
                                             of Section 4 (7) House Bill
                                             X~o.611, 47th Legislature,
                                             a8 amended by the Acts of
                                             the 46th Legislature.

          This will acknowledge receipt of your letter, which reads, ir
part, 85 follows:

           "Section 4 (7) of I!ouseEill 611, A&s of the 47th
       Legislature, Regular Session, as amondsd by Acts of the
       48th Legislature, Rewlar Session, provides in pert:

           801 . a . . provided, however, that all employees of
       the ?I!epartmentshall have been residents of the State of
       Texas for a period of at least four (4) years next pm-
       ceding their appointment.

           "T% are receiving many applications for employment from
       persons who have maintained legal residence for voting
       purposes within the State but who have been absmt frm
       the State over various periods of time within the last
       four years.!

             For oonvenience we regroup your questions as follows:

          1. The character of legal residence required for employment
with the State %partment of Public Welfare?

          2. J?oesthe residence statute, supra, have reference to actual
physical presence within the State or may the Public Welfare apartment
consider the intent of the prospective employee in determining the nature
of his residence?

          3.  ‘&en n person’s employment has necessitated his travelling
over the country with only infrequent visits in Texas, but at all times
Honorable John H. Winters, Page 2                O-6074



considered Texas his legal place of residence, paid his poll tax and
voted in Texas, would his intention to return be sufficient to establish
residence?


          4. Would the statement of his intention to return to Texas be
sufficient to establish residence ir:the absence of visits, Payne&, of
poll tax and voting in Texas, provided he had not claimed the right to
vote in 8010sother State?

          5. Could the Public Wel~fareDepartment consider that a minor,
whose parents are legal residents of the State of Texas, has fu]fillsd
the residence requirement when the mirrorhas been absent from the'State
continuousl~yattending school or working for the four year period with
only infrequent visits with her parents, residence being claimed solely
on the basis that she acquired the residence of her parents.

          6. If the minor had never actually lived in this State with
her parents prior to going to sohool or accepting employment outside the
State, would this make any difference in the decision?

          Generally, where a statute presaribes residence as a qualifi-
cation for the enjoyment of a privilege, or the exercise of a fran-
chise, and/or whenever the terms are used In connection with subjects
of domestic policy, domicile and residence are equivalent, 19 C,J, p0
397, 28 C.J.S. pe 7.

          And it is our opinion that the Legislature, in enacting this
residence statute, had in mind a state public poliay, .theprevention of
appointment of transient workers in the &partment of Public Welfare,
and further intended residence to mean and be the same as domicile.

          In a strict and legal sense the domicile of a person is the
place where he has his true, fixed and permanent home and principal
establishment, and to which, whenever he is absent, he has the inten-
tion of returning, or in other language, the place in which he has his
fixed habitation, ,withoutany present intection of removing therefromz
Elxparte Blumer, 27 Tex. 734 (Quoting Store, Conflict of Laws), It
will thus be seen that two things must concur to constitute domicile:
First, residence; and second, the intention of making the place of
residence one's home, See 16 Tex. Juris. P, 709, with cases cited,

          While the intention must be constant, it is not necessary that
the individual be physically resident continuously    at the place in order
there to maintain the domiojle after it has once been acquired, actual
residenoe is not indispensable to the retaining    of a domicile once
acquired3 it is retained by the mere intention not to ohange or adopt
another.  EcIntyre v. Chappel, 4 Tex, 167, 197. And it 1s of no oonse-
quenoe how short the residence may have beenl it is the fact of
residence, coupled with irtention that establishes the domicile.
Republlo vo Young, Dallas, 464.
,   I




        Honorable John H. knters, Page 3             O-6074



                  The foregoing is, in our opinion, in general, the character
        of legal residence required for employment with the State Espartmant of
        Public Welfare.

                  i?ithregard to your seaond question, it is our opinion the
        residenae statute, supra, has referenoe to both an actual physical
        presenae within the State and intent. He must have established a
        domicile in Texas. TO do that, 88 stated above, he must actually reside
        in the State and have an intention to remain, or not to adopt another
        or, if aaey, to return. If he should leave Texas, a ohange of domicile
        or residsnoe depends on intention, or, as sometimes stated, on a dual
        intention to abandon the former domicile (Texas) and to acquire another.
        Sec. 28 C.J,S. p. 15, 16, with cases cited. Your second question, there-
        fore, cannot he answered oategoriaally.

                  Your third question in our opinion should be answered in the
        affirmative. Temporary residence, even if long, merely for the purpose
        of transacting business or of engaging in employment, with the intention
        of returning to the original home, is not suffioient for change of
        domicile. 28 C. J. S., pa 19, with oases cited, The place of exercise
        of the election franchise is important evidenoe on the question of dom-
        icileg it may be even the highest widenoe, and has been oalled the
        most important of all the fonsal acts to be scrutinized in ascertaining
        a person's domicile. See oases cited, 28 C.J. S. pm 46. His intention
        to return and not adopt another domicile would be sufficient to estab-
        lish residenoe.

                  With reference to your fourth question the person in question
        at all times considered Texas his home, though he did not pay his poll
        tax or vote here, nor visit here, but did not claim the right to vote
        in some other State.


                  An established domicile is not lost merely by temporary
        absence therefrom, or temporary residence elsewhere, however long
        continued, even for a period of years. A person intending to retain his
        old domicile, may reside almost indefinitely out of the loous of such
        domiaile. In re Curtis. 178 N.Y.S. 286, 288. Furthermore, if an in-
        dividual is shonn to have bean domiciled at a partiauler place, he will
        be deemed to have retained that domicile unless it is shown affirmatfve-
        ly that he acquired a residence elsewhere. Sheppard V. Cassiday, 20
        Tex. 24, 29, 70 &II.Dec. 372.

                  If his statement of intention to return to Texas was honest,
        and not made for the purpose of creating widenoe in his favor after he
        has become appreciative of the consequences of a change of domicile and
        not made to aonceal another real intention, in our opinion it would
        establish his domioile as still in Texas, provided he at all times in-
        tended to return to Texas and had not established a domicile elsewhere.
                                                                              -   .




Honomble   John H. Winters, Page 4             O-6074




          IVerestate the facts involved in your fifth question, A
minor whose parents are legal residents of 1exas, cleims residence in
T.¶x** solely on the basis that she acquired the residence of her parents,
This minor has been absent from the State continuously attending school
or working for the four year period with only infrequent visits with
her parents.

          Generally B person who is under the power and authority of
another possesses 110right to choose a domicile. Thus the domicile of a
minor child is always that of the father, and necessarily changes with
any change of the father's domicile. Cases &ted 15 Tex, Juris, pm 715.
9 R.C.C. pm 547 #lO. And a student who goes to a university, school or
college is deemed to have retained his fanner domicile unless he shows
an intention to make a change to the place in whioh the institution is
located.   See 9 R.C.L. p. 552, #15. In view of the foregoing we are of
the opinion that the minor in question has fulfilled the residence re-
quirements.

          With reference to your last question, it is our opinion that
as a miror's domicile is that of the father"s B minor has complied with
the residence statute, supra, though the minor has never actually lived
with the parents in Texas before going to school or work:ir:g
                                                            outside ,the
Stats, if the parents have been domiciled in this State for four years
next proceeding the appointment.

          We have assumed in the latter two questions that the parents
were not divoroed. Ke have further essumed in all questions that the
residence or domicile upon which the question is based has been es-
tablished for the required four years next preceeding the appoi&ment.

           Trusting this satisfactorily answers your inquiry, we are

                                              Yours very truly

                                         ATTORNEY GENERAL OF T&XAS


                                          By s/Benjamin Woodall
                                                   Benjamin Woodall
                                                          Assistant

                                         By e/Elton M. Cyder, Jr.
                                                  Elton M. Ryder Jr.


APPROVED SEP. 13, 1944          P. Blackbum
                         s,/fXao.              (ACTIKG) ATTORNEY GEhwAT, OF
 TEXAS

Approved Opinion Committee tiyR~!dB
                             -.,  Chairmen
