          THE    Ano-YGENEW

                      OF     TEXAS




Han, R. L. Lattlmore                 Opinion NO. w-859
Criminal District Attorney
Hidalgo County                       Re:   Whether a citizen of Texas
Edinburg, Texas                            maintaining a home and
                                           business in Texas, but whose
                                           wife is a Mexican citizen
                                           and lives in Mexico, is en-
                                           titled to vote in Texas.
Dear MP, Lattimore:
         You have requested an opinion on whether a citizen of
Texas who maintains a home and place of business in Texas, but
who has a wife of Mexican citlzenshlp'in Mexico and visits her
and stays overnight with her in Mexico at regular intervals, has
lost his voting rights as a Texas citizen. In your request you
state that in Hldalgo County and other border counties in Texas9
citizens of the United States domiciled in Texas sometimes marry
women of Mexican citizenship, living in Mexico at the time of the
marriage, and followlng,,the,,,marrlage
                                     the wives continue to live
In Mexico and the husbands continue to live and conduct their
businesses in Texas, By way of further explanation of the marital
relationship between husband and wife, you have said:
          ?n the case Inquestion here,ln Hidalgo County,
     it,is my understanding that these'cltizensdid nothing
     urong or reprehensible~in such marriages. That is,
     they have lived all their lives just across a narrow
     river from the foreign country and have traveled back
     and forth across this river to visit the inhabitants
     of the other country as much as they have within this
     country. Aside from the difficulty of bringing their
     wife to their home on the American side of the river
     due to the immigration laws, there is an economic factor
     involved in that they can raise a family much cheaper in
     Mexico than they can on this side of the river, Of
     cburse, I do not know that these factors I have mentioned
     have motivated all the persons involved but I assume that
     they have. The ordinary practfce of these international
     marriages that I have described is for the husband to
     cross the river two or three times a week and spend all
     night with his wife in Mexico and for the rest of the
     time, he spends It at his residence in Texas where he
     spends all the working days,"
Hon. R, L, Lattlmore, page 2 (w-859)


         In order to be a qualiffed voter in Texas* a person must,
among other things, be a citizen of the United States and a resl-
dent of the State of Texas. Art, VI, Set, 2, Tex.Const.; Art, 5.02,
Vernon's Texas Electfon Code. "Residence" refers to domfcfle or
legal residence as distin uished from place of actual abode, Snyder
v. Pitts, 150 Tex, 407, 2&1 S,W,2d 136 (1951)0
         Article 5.08 of the Election Code provides that the resi-
dence of's married man Is where his wife resides, or if he be
permanently separated from his wife, his residence Is where he sleeps
at night. The phrase "where his wffe resides" means her domicile or
legal residence. Major v. Loy, 155 S.W.2d 617 (Tex.Civ.App. 1941),
         Following the common law rule* which obtains In this State,
the Texas courts have held that the husband has the right to select
the family domfcile, and that ordinarily the family domicile is the
domicile of both the husband and the wife, McSehee v. Boedeker,
200 S.W.2d 697 (Tex.Civ,App. 1947); Postle v. Postle, 280 S W 2
633 (Tex.Cfv,App, 1955); 23 Tex.Jur.9 Husband and mfe, B 81 ‘Tdhe
rule giving the husband the right to select the family domicile is
based on the common law theory that upon marriage the Identity of
the wife becomes merged in that of the husband and that the wffe,
having no legal existence, has no power to choose her domicile,
It is established for her by operation of law, through the act of
her husband in choosing the place where they are to maintain their
home,
         Ordfnarfly, where the famfly domicile selected by the hus-
band is his domicile at the time of the marriagep it becomes the
domicile of the wife immediately upon marriage, even though she is
temporarily living elsewhere and has never actually lived at the
place selected, Henderson v, Ford.,46 Tex, 627 (1877);  elements
v&L;cy, 51 Tex, 150 (1879); Att'y Gen. Op, S-207 (1956). We have
     ound any Texas case deciding whether this rule would be
applied to a wife who at the time of the marriage was a resident
citizen of a foreign countryy,where there has been no compliance
with Federal fmmigratlon requfrements fop admPssfon of the wife
to residence in this country,
         So far as we have found, the rule tha% the wifeus domicile
is drawn to that of the husband has never been applied in this
State to make the place of residence of the husband the.domicfle
of the wife where there is no intention on the part of either the
husband 02"the wife to establfsh a domicile for the wife at that
place, Wherep following the marriage, there haa been a separation
with no intention of contfnufng the marital relationship, the
husband and wife may have separate domiciles, Even during contin-
uation of marital relations, the wife may have a domicile different
Hon. R. L. Lattlmore, Page 3 (WW-859)


from that of the husband where he has given his consent for the
wife to resfde elsewhere than In his home. Miller    v. Stine,  99
S.W.2d 397, 399 (Tex.Cfv.App.1936); Barnes -i;a west, 203 S$%.2d
582 (Tex.Civ.App.1947). Also see Ani notations.
                                              _ 75._ A,L.R.
                                                       _~~~_ 1270.
                                                                 _
90 A.L.R. 358, and 128 A.L.R. 1422.
         In thfs opinion we are concerned with the place of domi-
cile or legal residence of the wife only as It may affect the place
of residence of the husband for voting purposes, If upon marriage
the wifess domicile was drawn to that of the'husband, there is no
problem in concludfng that the residence of the husband Is still
in Texas. Howeverp if the wifeIs domicile after marriage continued
to be In Mexico, we are confronted with the question of whether
Article 5.08 of the Election Code conclusively fixes the husband"s
domicile there also for the purpos of determining whether he is
a qualified elector of this State,f
         The dom9cfle of a person who has the power to choose his
domicile Is established by the concurrence of two things: (1)
actual physical presence at a place of abode, (2) with the intent
to make that place of abode his home, Snyder v. Pitts and Ma or
        supra; 15B Tex.Jur.p Domicfle,g 7   In our opinion,-Et&--
w     ixing a married manDs residence a% the place where his wife
resides has no application where the husband has never lived at
that place with the intention of makfng it his home. In Harwell
v. MOPP~S, 143 S.W.2d 80gp 816 (Tex.Cfv.App~$J40), it was said:
         ' * + + It has been the law of this State sfnce
     an early day that the place of residence of a married
     woman is where her husband resides. (Citations.)
           "It has never been the law fn Texas that the
     residence of the husband is drawn to that of ae
     wife where th y h ppen for a time, to be at different
     places. (CftEtio& ) The rule was not changed b
     the provisions of Ait, 2958, R,C.S., 1925 now Ar:fcle
     5.08,   Election Cody9 which provides that e he residence
     of a marrfed man fs where his wife resides. That act
     was passed in 1905, long before suffrage was extended
     to women in Texas and had reference only to the rea9-
     denoe of the husband, why at that tfme, was the only


         lThe provision In Article 5.08 with respect to the resi-
dence of a,marrled man who fs permanently separated from his wife
refers to a separation with no Intention of continuing the marital
relationship, and fs not applicable to the present fact situation.
Han, R. L. Lattimore, page 4   (w-859)


     member of the community who was entitled to vote, and
     it was designed only to provide a criterion by which
     the husbandOs residence could be definitely established
     in case of doubt as to his--not the wife¶s--residence,
     It was never intended by the law makers to change the
     long established rule that the residence of the family
     is established by the will OP conduct of the husband.
     If the law were otherwise, we would have the anamalous
     possibility of the wIfeus legal residence being at one
     place and that of the husband, from whom she was not
     separated, being at an entirely different pl,ace,even
     in a different county." (Emphasis supplied.)
This case holds that the residence of the husband Is no% drawn to
that of the wife, and that Article 5.08 of the Election Code has
not changed the law in that regard. The point for determination
was the wifeus residence where the husband and wife intended
eventually to occupy a single dwelling, the place which the hus-
band was providing for the wife's permanent place of abode as
well as his own, The statement with respect to the wifePs resl-
dence being where helphusband resides was made in the light of
that intention. As we have seen, this is not an inflexible rule,
We have found no exception to the statement that the residence
of the husband is not drawn to that of the wife, See 23 Tex.Jur,g
Husband and Wife, % 8; Speer, Law of Marital Rights in Texas (3rd
Ed, ),8 79. In OUP opinion, a married man does not acquire a new
residence after marriage by his mere presence at the place selected
FOP the wifePs domicile without any intent to make that place his
domicile also.
         If Article 5.08 of the Election Code was inten$ed as an
Invariable rule for determining the residence of a married man
not permanently separated from his wife, in disregard of the
common law rules by whioh residence was to be determined under
Article VI, Section 2 of the Constitution, its constitutionality
would be open to question. See                suprap at page 620,
In Stratton v, Hall, 90 S.W.2d              'pp. 1936),the court
said:
         "Article 29% defines the OresidenceD of a
    married man, within the meaning of the election laws,
    to be where his wife resides8 unless he be permanently
    separated from her, and his res%denc@ is considered
    to be in that place unless a oontention is‘made that
                                                          X0
                                                          t
                                  n some 0
    where his wife residea, the questfon must be determaf:ed
Hon. R. L. Lattimore, page 5 (WW-859)


     by reference to the actual facts and circumstances; one
     of which will be his intentionOft (Rmphasis supplied.)
In other words9 the effect of the statute is very much the same as
stating a rebuttable presumption, based on the customary marital
arrangement of a single household to which each spouse returns after
temporary absences, Cf. 28 C.J.S., Domicile, El16(b); Hill v.
Niblett, 171 Md. 653 187 A. 869 (1936); State ex rel. ITulyt
Scanlan, 75 S.W.2d g&3 (Tex.Civ.App. 1934, error dism.).
         We assume that In the fact situation you have outlined
the husband has never intended to make the place in Mexico his own
home, but only to make it the home of his wife, We infer that
his entries into Mexico are as a visitor under Mexican immigration
laws, that he has not complied with the requirements of the Mexican
immigration laws which would enable him to remain in Mexico as a
resident of that country, that he has continued to claim Texas as
his place of residence, and that he considers himself to be merely
a visitor to Mexico when he spends the nights with his wife. The
question we have to determine in this opinion is whether the hus-
band is a resident of Texas, but since Article 5.08 is framed in
the positive as stating where a married man's residence is rather
than stating where it is not, a holding that his residence is not
In Texas would have to be based on a holding that it is In Mexieop
in violation of the laws of that country02 The illegality of a
residence in Mexfco is but another reason for concluding that
Article 5.08 should not be applied to the fact situation before us.
Under this state of facts9 if he has lost his Texas residence it
is because the law of this State compels him to adopt his wife's
residence as his own and not because he himself has chosen to make
it so. In our opinion, his presence in Mexim under the circum-
stances you have outlined has not eaused a loss of his residence
in Texas. We therefore hold that he continues to be a legal
resident of Texas and may vote in this State if otherwise quali-
fied.


         21f the husband had complied with the immig??ationlae-
quirements for takfngup keaidenee in Mexico OP had done other acts
consistent with an intent to become a resident of that country, the
question of whether he had abandoned his residence in Texas would
become a fact question and his declapatfon of a eontpary intent
would be only one of the elements to be considered in deciding that
issue. We are holding that visits with his wife under the facts
stated and assumed herein do not evidence that intent and do not
constitute a change of residenoe,
                                                                   .




Ron. R. L. Lattimope, page 6 (W-859)


                                 SUMMARY

           Where a resident citizen of this State marries
       a woman who is a resident citizen of Mexicop and
       following the marriage the wife continues to live in
       Mexico and the husband continues to live and conduct
       his business in Texas but spends two or three nights
       a week with his wife in Mexico as a visitor to that
       country, he continues to be a resident of Texas and
       is entitled to vote in this State if otherwise quali-
       fied. Article 5.08 of the Eleotion Code, stating that
       the residence of a married man not permanently separated
       f??omhis wife is where his wife resides, does not operate
       to make him a resident of Mexico.
                                       Yours   very   truly,

                                       WILL WILSON
                                       Attorney General of Texas




MKW:ljb
APPROVED:
OPINION COMMITTEE
J.   C. Davis,   JP~* Chairman
Charles D. Cabaniss
C. Dean Davis
Byron Fullerton
Robert A. Rowland
REXIEWED FOR THE ATTQRREY CENERAL
BY:
     Leonard Passmore
