                           March 18, 1987




Frank E. Vandiver, PhD                  opinion   No. Jn-647
President
Texas A&MUniversity System             Re: Whether certain applicants      for
319 System Building                    admission    to Texas   universities
College Station, Texas 77843           are  residents  of Texas for pur-
                                       poses of payment of tuition

Dear Dr. Vandiver:

     You ask about the residency    status of a student whose father is
employed by the Department of State as a foreign service officer.        The
determination  of whether a particular    individual   is a Texas resident
is a question of fact which we cannot address in the opinion process.
See Attorney General Opinion X4-367 (1985).       We can. however, clarify
ZZeral   legal issues relevant to your question.

      Because tuition     rates at Texas colleges        and universities   are
higher for nonresidents      than for Texas residents,     Educ. Code 554.051,
it is necessary      for colleges    and universities    to determine whether
students   are residents       or nonresidents.       See Educ. Code P54.052
(statutes   regarding determination      of residencystatus).       The student
in question is his father's       dependent for federal income tax purposes.
Therefore,    section    54.052(c)    of the Education        Code governs   the
determination of whether the student is a resident or a nonresident:

               An individual  who is under 18 years of age or
           is a dependent and who is living       away from his
           family and whose family resides     in another state
           or has not resided       In Texas for the 12-month
           period preceding the date of registration    shall be
           classified   as a nonresident student.

See also Educ. Code 054.052(a)(3)      ("dependent" means an      individual who
is claimed as dependent by his parent or guardian for             federal income
tar purposes).       "Residence"   for purposes     of section      54.052 means
"domicile."    Sec. 54.052(a) (1).     To determine whether      the student in
question    is entitled    to pay resident   tuition,   then,    the university
must ascertain   the domicile of his father.

      The key elements    of the legal concept of "domicile"         are actual
residence  in a place     and an intent to make that place          a permanent




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home. Snyder v. Pitts,       241 S.W.Zd 136. 139 (Tex. 1951).     Ordinarily,
there is a presumption that the place where a person lives              is his
domicile.     Gallagher v. Gallagher,   214 S.W. 516, 518 (Tex. Civ. App. -
San Antonio 1919, no writ).       It is possible,   however. to reside in one
place and have a domicile        elsewhere.     Once a person establishes     a
Texas domicile he may live outside Texas without destroying          his Texas
domicile   as long as he has the intent to retain his Texas domicile.
Stone v. Phillips,       176 S.W.Zd 932 (Tex. 1944); see also Peacock v,
Bradshaw, 194 S.W.2d 551. 555 (Tex. 1946).          In most cases someone who
lives   outside Texas must show evidence of his intent to retain his
Texas domicile in order to overcome the presumption that the place a
person actually     lives is his domicile.

      A rule promulgated by the Coordinating   Board. Texas College and
University System. incorporates  the presumption that the place where a
person actually  lives is his domicile:

           If the parents of a minor move to another state or
           foreign country, or reside outside the state or in
           a foreign country at the tims of enrolling        in an
           institution   of higher education,    but claim legal
           residence   in Texas, conclusive     evidence must be
           presented that the father is still       claiming legal
           residence   in the State of Texas aad that he has
           the present     intent   to return to the state.        A
           certificate   from the employer of the parents that
           the move outside the state was tsmporarp and that
           there are definite     plans to return the parents to
           Texas by a determinable      future date may be con-
           sidered in this connection.

19’T.A.C.   521.21(g)  (1979); see Educ. Code 954.053 (Coordinating   Board
issues rules regarding nonresident     tuition).   That rule restates   the
costnon-law presumption discussed above and properly places the burden
of establishing    a Texas domicile on a person who lives outside Texas
but claims to be a Texas domiciliary.

      As indicated,    the presumption that the place where a person lives
is his domicile applies in most cases.        The courts have, however, made
an exception     to that rule and have held that the presumption is not
applicable    to persons in the military.     gather, there is a presumption
that a person in the military        maintains the domicile     he had at the
time he entered the military       throughout his entire     period of active
service.     Gallagher v. Gallagher,    214 S.W. 516 (Tex. Civ. App. - San
Antonio    1919, no writ);     see also Attorney General Opinion JM-367
(1985).     The court in Gallagher     explained    the rationale   underlying
that presumption as follows:




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Dr. Frank E. Vandiver - Page 3           (JM-647)




                Ordinarily,     it is a presumption of law that
            where a person actually           lives    is his domicile,
            such presumption of course being rebuttable;                  but
            no such presumption could arise             in the case of a
            soldier    in active service,        who has no choice of
            domicile,     but must ordinarily              cling     to   his
            domicile of origin.        Ordinarily,     an act of removal
            to a certain     location,    coupled with the intent to
            make a permanent residence                there,      might    be
            sufficient    to fix a domicile,        but that is because
            the removal is voluntarily          made, which could not
            occur in the case of a soldier           in active service.
            It follows     that the removal of the latter               to a
            place and his residence        there for years would not
            offer     any probative        evidence       to    corroborate
            evidence as to an intention          to make the place his
            home, but it would be necessary              to obtain other
            corroborative     facts of that intention.

214 S.W. at 518.   The Coordinating Board has properly included in its
rules the court-created   presumption that a person in the military
keeps the domicile he had at the time he entered the military.       19
T.A.C. 121.24(d)  (1979).

      In Attorney General Opinion JM-367 (1985). we concluded that a
court would find that the presumption of domicile                that applies      to
persons In military      service    also applies    to officers    of the Public
Realth Service.      We reached this conclusion        because several       federal
statutes consider service with the Public Health Service to be active
military   service and because several judicial        decisions   have held that
service with the Public Health Service is the equivalent               of military
service.     It has been suggested that courts might extend the presump-
tion of domicile that applies         to persons in the military        service    to
persons    in the foreign      service.     We find no basis,        however,     for
concluding that the courts would apply that presumption to persons in
the foreign service.       We find uo statutes under which members of the
foreign service are considered to be part of the military.               See, e.g.,
22 U.S.C. 53927 (1980) (chief           of mission in a foreign         country is
responsible    for all United States employees in that country except for
those under military      command). We must conclude therefore             that the
courts would apply to a person In the foreign service the presumption
that a person’s     domicile   is the place where he lives.         That presump-
tion is, of course,    a rebuttable     one, and we do think that it would be
proper to consider in determining the issue of domicile that a person
representing     the United States in the foreign         service    is likely     to
have the Intent of maintaining           a domicile   somewhere in the United
States.




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Dr. Frank E. Vandiver - Page 4        (JM-647)




      The student you Inquire about offered           some evidence   that his
father is a Texas domiciliary.          Apparently the university    concluded
that he had not offered      sufficient    evidence to overcome the presump-
tion that his domicile     is outside of Texas.        We cannot resolve    fact
questions    in the opinions    process.     Unless we can hold that,      as a
matter of law, the evidence           showed that the father     was a Texas
domiciliary    -- and in this Instance we cannot -          we may not object
to the university's     conclusion      that    the father   is  not a Texas
domiciliary.

                                 SUMMARY

                 The foreign   service  is sufficiently   distinct
           from the military     that a court would probably not
           apply to a person In the foreign service a presuxp-
           tion such as that applied      to military   personnel,
           i.e.,   the presumption that a person in the military
           keeps the domicile he had when he entered military
           service.




                                             JIM     MATTOX
                                             Attorney General of Texas

JACK HIGXTOWER
First Assistant Attorney    General

MAmiCELLER
Executive Assistant   Attorney   General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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