                                   The Attormy               General of Texas
JIM MAlTOX                                            Nsvember 14. 1984
Attorney General


                                 Honorable Ray Parabee                            opinion   No. ~~-231
Supreme Couti Bullding
P. 0. Box 12549                  Chairman
*usm.    TX. 78711.2549          State Affairs Comml’ttee                         Re: Whether an employee resident
512l4752501                      Texas State Senate                               of a state    school is a legal
Telex 910/87C13S7
                                 P. 0. Box 12068. Calpitol Station                resident   of    the  surrounding
T&copier     512i4750266
                                 Austin, Texas   78711                            independent school district

714 Jackson. Suite 700           Dear Senator Farabee:
Dallas. TX. 75M2.4M6
214174269U
                                        You have informed us that an employee residing on the campus of a
                                 state    school seeks election        to the board of trustees          of the indepen-
4824 Albwla    Ave.. Suite 160   dent school district       in which the state school is located.               The state
El Paso. TX. 799052793           school     Is a star:e correctional          facility      for    delinquent    children
91515333464                      administered     by tt,e Texas Youth Commission pursuant to chapter 61 of
                                 the Ruman Resource19 Code.            The state     school is not an independent
 .dol Terra    suits   700
                                 school district      having geographical      boundaries;       it is a state-created
“ourton. TX. 77002.3111          and state-administered        facility    having no elected board of trustees.
7lY22MSS9                        All employee residents       of the state school are employees of the state
                                 of Texas.       Tbe geographical        boundaries     of the independent          school
                                 district      completely    enclose     the state       school.       The employee       in
606 Broadway. Suite 312
Lubbock. TX. 79401.2479
                                 question has resided on the campus of the state school for more than
SW747.5239                       six    months,    has voted       in previous        independent       school   district
                                 elections, s sc~~ol;as
                                 district,                     children     attending       the     independent     school
4309 N. Tenth. Suite B
McAllm. TX. 7S501.1SS5
512,SS2-4547                             You ask us the following       questions:

                                                  1. Uader the facts as outlined above, does the
200 Main Plaza, Suits 400
                                              applicant   for a place on the district  ballot meet
San Antonio, TX. 762052797
                                              the resld’ency requirements of article   1.05 of the
 51212254191
                                              Election   Code for a ‘district   or political    sub-
                                              division, ’ so that he may appear one the ballot    as
                                              a candidate     for the board of trustees      of the
                                              inaependznt school district?

                                                  2.    If  the applicant        does not satisfy   the
                                              requirements of article        1.05 of the Election Code,
                                              is he still     qualified   to vote in the elections   of
                                              the     independent     school     district  pursuant  to
                                              article     KC, section 2 of the Texas Constitution?

                                                 3.   If   the applicant is not permitted to be a
                                              candidat?    or to vote in the independent school



                                                                   n. 1036
Honorable Ray Farebee - Page Z!               (JU-231)




                district   elections    by virtue    of his status as a
                state employee reaidtng on the campus of a state
                facility,     does   this.  prohibition    constitute  a
                denial of equal Ilrotection        or a deprivation   of
                liberty   under thd! Fourteenth        Amendment of the
                United States Constitution?

We conclude,   first,   that the state employee applicant       does meet the
residency  requirement of ar!:icle    1.05 of the Election    Code, and that
his name may appear on the b,LLlot as a candidate for a position       on the
board of trustees       of the independent    school   district.     A state
employee cannot conclusively       be presumed to be a nonresident       of a
political   subdivision   by vj,rtue of his status as a state        employee
residing in a state enclave.

      Article       1.05,   V.T.C.S..   of the Election      Code provides     in part   as
follows:

                    Subdivision    1. No person sball be eligible             to
                be a candidate for, or to be elected or appointed
                to,    any public     trlective    office      in this    state
                unless     he is a citizen         of the United States
                eligible      to    holsd     such     office      under     the
                Constitution      and laws of this            state . . . and
                unless he will hav’e resided in this state for a
                neriod of 12 monthe next nrecedlnn the annlicable
                iate specified      below, and for an; public** office
                which is less than statewide,            shall have resided
                for six months ntgt preceding              such date in the
                district,    county, precinct,      municipality.     or other
                political    subdivision     for which the office        is to
                be filled.      (EmphasK added).

       The residency       requirement   for   any candidate     for   any public
elective   office    in Texas is 12 months in the state preceding the last
day his name may be placed on the ballot              and 6 months in the state
preceding    such date In the distrkt           or political   subdivision.     The
Court of Civil Appeals has held that a school district            was a “district
or political      subdivision”    within the meaning of article       1.05 of the
Election Code. See Brown v. Patterson,            609’S.W.2d 287 (Tex. Clv. App.
- Dallas 1980, T          writ).   ?ou   indicate    that the applicant,     as an
employee ot the state,        has c#l?sided on the campus of the state school
for more than six months.

       What constitutes      “reslinsnce”     is defined in article    5.08.(a)  of
the Election     Code:     “domicj.le;    i.e.,    one’s home and fixed place of
habitation   to which he intends toxurn              after any temporary absence.”
The Election      Code does not: define          “residence”  for the purpose of
running for public office,         but the term has been construed to mean the
same for the purposes of voting as for the purposes of running for
political   office.    Cf. Prince v. Inman. 280 S.W.2d 779 (Tex. Civ. App.
                       ---

                                                                                              c
Ronorable   Ray Farsbee   - PaSe 3       (JM-231)




- Beaumont 1955, no        vrit).     For   the     purpose   of   voting,   article
5.08.(i) states that

            [t]he   residence    of one who is an officer     or
            employee of the g;overnment of this state or of the
            United States shall be construed to be vhere his
            home was before    . . . unless he has become a bona
            fide   resident   of    the place  where he is    in
            government servic:fr. . . .

Determining the question      of residency    is a question      of intent    and
factual circumstances.     It ,Ls not within the authority       of this office
nor within the discretion    of the official    receiving   the application    to
determine those factual     qnastions.     See Parker v. Brown. 425 S.W.2d
379, 381 (Tex. Civ. App. - Tyler 1968,          writ)   (question of residence
is to be judicially      determined);    see also Mills      v. Bartlett,     377
S.W.2d 636, 637 (Tex.       1'364) (residence     Is determined     by factual
circumstances).

       In any event,     article    5.08 when read with article         1.05 cannot
operate    to disenfranchise:       a state    employee who lives        within   the
geographical     boundaries      of the independent       school  district     merely
because his place of resid'ence is located on a public enclave.                   The
right to vote and to run for a political           office    are basic fundamental
rights    guaranteed     by tha First       Amendment to the United            States
Constitution.      Dunn V. Blumstein,         405 U.S. 330 (1972);         Evans v.
Cornman. 398 U.S. 419 (1975);             ,ington v. Rash, 380 U.S. 89 (1965).
Any statutory      provisions      which restrict    the right     to hold public
office   should be construei. strictly       against ineligibility.        See Chapa
v. Whittle,    536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976
no writ).

       The factual   situation    as presented is governed by the principles
 of Carrington     v. Rash, supta,       and Evans v. Co-n,         supra.   In
 Carrington,    the United Swtes       Supreme Court held that article      VI.
 section    2 of the Texas Constitution         was violative    of the equal
 protection   clause of the Fourteenth Amendment because the provision
 established   a conclusive    presumption against servicemen from acquiring
 residency   for voting purposes.       However, the Court did conclude that
 "Texas ha[d] a right to require that all military          personnel enrolled
 to vote be bona fide resitients of the community."         380 U.S. at 93-94.
 At that time the state of Texas provided no means by which a soldier
 could establish     a bona fide residency       in the county where he was
 stationed.

       Similarly,    in Evans '5 Cornman. 398 U.S. 419 (1970).    the United
 States Supreme Court considered the issue of whether persons living on
 a federal    enclave could acquire residency    for voting   purposes.    In
 m.       &.      the Permanent Board of Registry    of Montgomery County.
 Maryland, ruled that perwns       living  on the grounds of the National
 Institutes    of Health [hereinafter     NIH]. a federal   enclave  located
Honorable   Ray Parabee - Page s!,      (Jn-231)




withla    the geographical     boundaries   of the state,       did not meet the
residency requirement of the! Maryland Constitution.              Accordingly, NIA
residents    were denied the right to vote In Maryland elections.              The
Court   in striking     down the provision    of the Maryland Constitution      as
violative    of the equal protection      clause of the Fourteenth Amendment
to the United States Constitution,        held that the state could assert no
overriding     interest   to restrict   the right to NIH enclave residents;
and, that NIB residents wer I! residents        of Maryland and were “just as
interested    in and connected with electorial         decisions    . . . as [are]
their neighbors who lived off the enclave.”          -Id.  at  426.

        We conclude that Carrington and Evans prohibit       election    officials
 from applying     article    1.05 x    circumscribe  the right       of a state
 employee to acquire residency        to run for public office      by virtue of
 the fact that he resides OIL a state enclave,        particularly,       as here,
 when the state enclave is l.c~cated within the geographical            boundaries
,of the political    subdivision   in which he seeks office.      The purpose of
 article   1.05 is to provide better representation      by assuring that the
 voter will be better acquainted with the qualifications            and views of
 the candidate and the candidate will be acquainted vith and responsive
 to the needs and desires of the voter.        See Brown v. Patterson, supra.
 By construing article     1.05 jn favor of theresidency      of the applicant,
 the statutory    purpose ~111 rot be frustrated.

      Since your second and third        questions   are ~predicated on a
negative answer to your firt,t question,    it ia not necessary to address
them.

                                  SUMMARY

                Article   1.05 o:i the Election Code does not bar
            a state      employe,? from establishing         residency
            within an indepentlent school district       by virtue of
            the fact     that he resides        on a state    facility
            located    within the: geographic      boundaries of the
            independent      school   district.       The applicant,
            having met the res,idency requirement may obtain a
            place on the ballot: for the position       of trustee of
            the independent school district.

                                                   I
                                              Very truly   y


                                           J  JIM
                                                    L
                                                      MATTOX
                                              Attorney General of Texas

TOMGREEN
First Assistant    Attorney   General




                                        p. 1039
Eonorable   Ray Parabee - Pagr 5    (JM-231)




DAVID R. RICBABDS
Executive Assistant Attorney   General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
