Ausms~. TRXA~ 78711
March 20, 1975
The Honorable F. H. McDowell Opinion No. H- 559
President
East Texas State University Re: Whether persons
Commerce, Texas 75420 incarcerated in a federal
correctional institution in
Texas are Texas residents
for purposes of college
tuition.
Dear President McDowell:
You have requested our opinion regarding whether persons
incarcerated in a federal correctional institution in Texas are Texas
residents for purposes of college tuition. We will first address
ourselves to the status of inmates who were not Texas domiciliaries
prior to their incarceration.
Section 54.051 of the Texas Education Code prescribes a tuition
rate for resident students of $4 per semester credit hour, but not less
than $50 per semester, and for nonresident students a rate of $40 per
semester credit hour. An individual above the age of 18 years is
classified as a “resident” if he has “resided in” Texas for a 12-month
period prior to registration. Sections 54.052(e) and 54.054, Tex.
Educ. Code; Attorney General Opinion H-82(1973). “Resided in” is
defined by the statute as “domiciled in. ” Exceptions to this general
test for determining residency, discussed below, are detailed in other
portions of the statute.
In the United States Supreme Court’s recent decision in Vlandis v.
Kline, 412 U.S. 441 (1973). the Court struck down a Connecticut statute
which in certain instances created an irrebuttable presumption of non-
residency. The statute provided that if the legal address of a married
student was outside the state at the time of admission, or if the legal
p. 2515
The Honorable F.H. McDowell page 2 (H-559)
address of a single student was outside the state during the year pre-
ceding admission, such student remained a nonresident for tuition
purposes so long as he remained a student in Connecticut. The Supreme
Court held that the statute contravened the Due Process Clause of the
fourteenth amendment because it denied a person the opportunity to
present evidence that he is a resident, on the basis of a permanent
irrebuttable presumption which was not necessarily true in fact.
The significance of the Vlandis decision for the present inquiry
is that, while no Texas statute in itself creates an irrebuttable pre-
sumption of nonresidency with regard to prisoners, section 54.052 of
the Education Code, in combination with a number of court decisions,
appears to have that effect.
Since section 54. 052 defines “residence” as “domicile, ” and
since the manner of determining domicile is not specified in any Texas
statute, we must rely on judicial construction. An early opinion,
Hardy v. DeLeon, 5 Tex. 211 (1849).cited Story’s Conflict of Laws for
the proposition that:
. . . residence in a place, to produce a change in
domicile, must be voluntary. If, therefore, it be
by constraint or involuntary, as by banishment, arrest,
or imprisonment, the antecedent domicile of the party
remains. &, at 235.
Other cases which~have considered various classes of physically
detained or legally disabled persons have adhered to this rule. The
removal of an insane person to a different county for institutionalization,
for example, is not voluntary and cannot therefore constitute a change
of domicile. Owens v. Stovall, 64 S. W. 2d 360, 362 (Tex. Civ. App.
--Waco 1933, writ ref’d). Federal cases have reached the same conclu-
sion, at least for purposes of diversity jurisdiction and venue. See,-
Ellinburg v. Connett, 457 F. 2d 240 (5th Cir. 1972); Dreyer v. JGt,
349 F. Supp. 452 (S. D. Tex. 1972), aff’d. 479 F. 2d 1044 (5th Cir. 1973).
In the latter case, the Court stated:
p. 2516
The Honorable F.H. McDowell page 3 (H-559)
It appears clear that an otherwise non-citizen of
a state does not acquire a domicile, and hence
citizenship, in a state merely because he happens
to be incarcerated in that state. &, at 465.
Although most courts have not expressed the prisoner domicile
rule in such terms, it is apparent that the effect of the rule is to create
an irrebuttable presumption of nonresidency with respect to all persons
whose preincarceration domicile was elsewhere. The Court of Appeals
for the Sixth Circuit, recognizing the logical and constitutional difficulties
in the operation of such a rule, recently concluded that the question of a
prisoner’s domicile required a factual determination that could not be
made by the facile application of an irrebuttable presumption.
In that case, Stifel v. Hopkins, 477 F. 2d 1116 (6th Cir. 1973), the
prisoner’s well-publicized murder trial in Ohio had aroused a great
deal of hostility against him there. He was sentenced to serve his term
at a federal facility in Pennsylvania, and he had declared publicly and
repeatedly that he never intended to return to live in Ohio. The Court
noted a number of situations in which a person’s compelled residence in
a particular jurisdiction does not prevent his becoming domiciled therein.
In each of these situations, the Court observed, the individual was not
precluded from showing that he had developed the intention to be domiciled
at the place to which he had been forced to remove. The same opportunity
should be afforded the prisoner:
No good reason appears for applying a contrary
per se rule to him by making the presumption
thathe has retained his former domicile an irreblttable
one. -Id. at. 1124.
In view of the clear trend of Texas and Fifth Circuit cases toward
an irrebuttable presumption rule, we would be obliged to disregard
the rationale of Stifel were it not for the “spectre of unconstitutionality”
raised “by approving the application of an irrebuttable presumption of
fact to a particular class of citizens. ” g, at 1125. For not only do
the unusual conditions of Stifel, but other circumstances as well, demonstrate
p. 2517
The Honorable F. H. McDowell page 4 (H-559)
situations in which a presumption of nonresidence might not be true
in fact. Federal prisoners, for example, may be permitted some
choice of the particular prison facility in which they will be incarcerated.
g, at 1119. firthermore, “the establishment of an apparently permanent
residence in the state of imprisonment by the prisoner’s immediate
family” would constitute some evidence of his intent to remain there.
g. , at 1128 (concurring opinion). Although a prisoner’s physical compul-
sion is an important factor in determining domicile, and although the
prisoner has the burden of proving the requisite intent, we cannot conclude
that he may never demonstrate this intent as a matter of law.
It is well settled that, where possible, a statute should be construed
so as to avoid constitutional conflict. State v. City of Austin, 331 S. W. 2d
737 (Tex. Sup. 1960); Southern Pine Ltimber Co. v. Newton County Water
Supply District, 325 S. W. 2d 724 (Tex. Civ. App. --Beaumont 1959,
writ ref’d, n. r. e. ). Since we believe that an irrebuttable presumption
of nonresidence would raise the “spectre of unconstitutionality, ” we
interpret section 54.052, and the various court decisions which have
considered the question of a prisoner’s domicile, to create a rebuttable
presumption that a person retains his preincarceration domicile. The
presumption may be overcome only by a sufficient demonstration of the
prisoner’s intent to remain in Texas after his release.
Exceptions to the domicile test in determining residency for
purposes of college tuition are specified in other portions of section
54 of the Education Code. One of these, the exception for “military
personnel, ” section 54. 058, is necessarily inapplicable to prisoners.
Others, such as the exception for “dependents of military personnel”
stationed in Texas, section 54.058, the exception for the spouse and
children of an employee of an “institution of higher education, ” section
54.059 and the exception for the spouse of a “resident of Texas,
classified as such under this chapter at the time of marriage and at the
time the nonresident registers, ” section 54.056, would seem to be
available to few, if any, prisoners.
Under the terms of section 54.052(d), a person “who has come
from outside Texas” may be classified as a “resident student” without
p. 2518
The Honorable F.H. McDowell page 5 (H-5591
regard to domicile, provided he has been “gainfully employed in Texas
for a 12 month period immediately preceding registration in an educa-
tional institution. ” Although the Federal Prison Industries Corporation
is required by statute to ‘I. . . provide employment for all physically
fit inmates in the United States penal and correctional institutions . . . ”
18 U.S. C. section 4122(b), it is doubtful that individuals who work in
prison can be said to be “gainfully employed. ”
In Sapp v. United States, 227 F. 2d 280, 281 (5th Cir. 19551, the
Court of Appeals held that federal prisoners may not be considered
employees of the United States for purposes of the Federal Tort Claims
Act. Prisoners would also seem not to qualify as persons “gainfully
employed” under any criteria established by Texas law. See, %. ,
Gibson v. Gillette Motor Transport, Inc., 138 S. W. 2d 29mex. Civ.
APP.. --Eastland 1940, writ ref’d); Great Southern Life Insurance Co.
v. Johnson, 25 S. W. 2d 1093 (Tex. Comm. App. 1930); Rose v. Clutter,
271 S. W. 890 (Tex. Comm. App. 1925).
In addition, the “gainfully employed” exception was probably
written into the statute in order to insure that an individual, before
he became eligible for resident tuition rates, would contribute to the
state economy for a substantial period through sales taxes and purchas-
ing. We therefore believe that the term “gainfully employed” was not
meant to be applied to prisoners. In summary, since it is doubtful
that he is qualified for one of the special statutory exceptions described
above, a prisoner in Texas who was not a Texas domiciliary prior to
incarceration, may demonstrate the fact of Texas residence for purposes
of college tuition only by an affirmative showing that he intends to remain
in Texas after his release.
In the case of individuals who were domiciliaries of Texas prior
to their imprisonment, we perceive no problem. Whether the presump-
tion that a person retains his preincarceration domicile be viewed as
rebuttable or irrebuttable, these persons must be deemed Texas residents
for purposes of college tuition.
p. 2519
The Honorable F. H. McDowell page 6 (H-559)
SUMMARY
Persons who are incarcerated in a federal
correctional institution in Texas and whose pre-
incarceration domicile was in Texas are Texas
residents for purposes of college tuition. Those
persons whose preincarceration domicile was
not in Texas may demonstrate Texas residence
only by showing that they intend to remain in
Texas after their release.
Very truly yours,
Attorney General of Texas
APPROVED:
Lti
, KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2520