            THE   ATTORNEY           GENERAL
                      OF     TEXAS




Honorable O.J.S. Elllngson
General Manager
Texas~Prison System
Huntsville, Texas
Dear Sir:              Opinion No. O-1438
                       Re: ConstFuing Rule 2 'of the tiegiilation
                            goveFnlng appointments ln'.theTexas
                            Prison System: "Re must-be a cltl-
                            Zen of the UriitedStates; an&must
                            have maintained legal resiaence in
                            the State of Texas for a'period of
                            not less than two years yior to
                            the date of application.
                                                            .
       We are In receipt of your letter of December 6,~ 1939,‘~
requesting an opinion of this department, which reads as fol-
lows :
                  "Re:   Thomas E. Alllson
                         Marauez, Texas
      "The above named Is an applicant for a
   posltlon && guard or steward with the Texas
   Prison System.
       "He calls his hoineMarquez, Texas; however,
   he and his family left Texas approximately 15
   years ago~and have resid& in Old Mexico since
   that time, Mr. Allison came back to Texas on
   September 1st of this year seeking employment
   because of economic conditions in Mexico; how-
   ever, his family still lives there.    He
   states during this tlme he has malntained his
   residence at Marquez, Texas; however, he has
   not paid his poll tax. He-~furtherstates he
   registered with the American consul in Old
   Mexico as an allen, but he did not take out
   citizenship papers and did not take Interest
   in polltics In old Mexico.
      "I enclose a copy of our application blank,
   and you will note that Rule No. 2 of the Reg-
   ulations Governing Appointments in the Texas
                                                                   --   ..




Honorable O.J.S. Elllngson, page 2          O-1438


    Prison System reads   as   follows:
       "'He must be a cftlzen of the United States,
    and must have maintained legal residence in the
    State of Texas for a period of not less than two
    years prior to the date of application.'
       "We would like to know whether Mr. Allison
    can be considered as having maintained legal
    residence In the State of Texas for the past
    two or more years."
       The proper answer to the question propounded rests
largely upon what Is meant by the term "residence," as it Is
used in your regulations governing appointment In the Texas
Prison System. The word residence" is a very elastic, flex-
ible and relative term, and Is difficult to define, as it
has no fixed meaning which can be used alike in all cases.
Its meaning depends upon the subject matter and connection in
which it Is used, and the sense In which it should be used Is
controlled by the reference to the object. 54 Corpus Juris p.
705, Sec. 1. The terms "residence" and "domicile" have been
given varied meanings and shades 6f meanings. In some ln-
stances they are construed to be different and Ln others they
are held to be identical, depending upon 'theapparent sense
in which they are employed. It was'stated in an opinion by this
department, dated September 13, 1933, addressed to Dr. H.Y.
Benedict, that l'resldenceas used in this statute (statutes
governing resident ana non-resident fees charged college stu-
dents) has the same meaning as domicile:" This same ruling
was made In conference oplnlonNo:~~2977, dated January 10, 1936,
Attorney General's Reports 1934-1936, p. 114, dlrected to Dr.
H.Y. Benedict.
       The word "domicile" may be substituted, as was done
In construing the above mentloned statutes, for the word "res-
idence" in Rule 2 of the regulations governing appointments
In the.Texas Prison System.
       The following rule is set out in 19 Corpus Juris 407,
Sec. 19, concerning the effect of absence on one's home or dom-
icile:
       "If a person leaves his home or domicile
    for a temporary purpose with an intentltn to
    return, there is no change of domicile.
This rule Is further substantiated by the case of Sabriego, #c
ux vs. White, 30 Tex. 585, in which the court made the follow-
ing statement:
-   . .




          Honorable O.J.S. Ellingson, page 3          O-1438


                 "No length of absence from one's domicile
              when one's purpose is to return to it operates
              as a change of domicile."
          In 19 Corpus Jurls 406, this line of reason&g   is supported
          by this statement:
                 "The original domicile is not changed even
              by a long absence if there If any intention of
              returning."
                 In the case of Lumpkln vs. Nicholson, 30 ~9.W. 568, in
          an opinion by the Court of Civil Appeals, in whibh a writ of
          error was denied by the Supreme.Court, it was hela'that there
          was some evidence that the object of removal was to obtain
          better educational facilities for the children, that the widow
          haa not entirely given up the intention of returning to Texas,
          and that the deceased haa stated his Intention of reserving
          his home there as a "nest egg" for his family, the court here
          heliithat the plalntlff had not abandoned the home. A person's
          legal residence or domicile is governed to a large extent by
          his intentton.
                 In the case of Gaar Scott and Company vs. Burge, 110
          9.X. 1.81,it was held.that a removal to another state lntenaed
          to be temporary and accompanied at all times during the"absence
          by an intention to return and re-occupy the homestead;will not
          defeat a homestead rlght once enjoyed within the state.
                                                                .~ ,..,
                 In conference opinion,Nor.2977, dated January 10,~~
                                                                   1936;
          Attbrney-General:Reports 1934-1936, p. 11, directed.to Dr. H.Y.
          Benedict, this questlon was answered in the following manner:
                "What is the retitidence
                                       status, under the
             terms of the statute referred to (tuition fee
             statute) Lifstudents who are minor children
             of American citizens who live in Mexico or
             some other foreign county? May these students
             be classified as residents of the foreign.
             country in whbch their parents are living, or
             should these students be classified as resl-
             dents of the specific state Zn which the
             parents had legal residence at the time they
             moved to the foreign country? Does the length
             of time the parent has lived .In:theforeign
             country have any bearing on the student's
             residence classification?
                 "The residence status under the terms of the
              statute referred to of students who are minor
 Honorable O.J.S. Ellingson, page 4          .o-1438


      children of American citizens who live in Mex-
      fco or some other foreign country is a fact
      question determined largely by the Intention
      of the father of the children. The fact that
      they are living In Mefico, In our opinion,
      would not prevent them from being classified
      as residents of Texas if when they moved to
      Mexico their intention was to return and they
      did noteabandon their intention after the move.
      The determtnation of this question is largely
      a matter of fact governed by the intedlon of
      the father of the children. The length of time
      the parent has lived in the foreign country
      does not have any bearing on the student's res-
      idence~quallficatlons."
         In answer to your question, we will have t‘6assume cer-
  taln facts. If Mr. Allison's sojourn itiMexico was considered
  by hlm3temporery, and he &t all times~had the intention of~~~re-
  turning to Texas as his place of residence, we can answer that
  under Rule 2 of the regulations he has maintained a legal res-
  idence in the State of Texas for a period of two years pr~lor~~
  to Zhla time. However, if Mr. Allison went,to Mexico with the
  Idea of making that his permanent residence, or at any time
  durFng his stay in Uexico he abandoned his Lntentidns of re-
  turning to Texas, we must answer that he does not qualify
"-under Rule 2 of the regulations.
        The-facts set out in your letter are not suffldlent
 for us to determine tiategoricallythe resideni:e'ofMr. Allison;
 however, we trust that-our,discussion will enable you to an-
 swer the question you ask.
                                      Yours very truly
                                 ATTORNEY GENERAL OF TEXAS
                                      By s/l"rederikB. Isely
                                           Frederlk B. Isely
                                           Assistant
 FBI: jmwc
 APPROm   DW"l8,   1939
 s/Gerald C. Mann
 ATTORNEYGENERALOF   TEXAS
 Approved Opinion Committee By s/RWF Chairman
