Untitled Texas Attorney General Opinion

Auwmm' I,.- JORN ETEN sElcPPP~lKlD ~X-ro~m-scX .a=NncYAI* June 28, 1956 Hon. Tom Reavley Opinion No. S-207 secretary of state Capitol Station RI: Voting rights of wives of Austin, Texas persons in military service. Dear Mr. Reavley: You state in your request for an opinion that since the,adoption of the constitutional amendment of November 2, 1954, amending Section6 1 and 2 of Article VI of the Consti-” tution, many members of the armed forces desiring to exerciee their right to vote by absentee ballot have requested infor- mation regarding the etabue of their wiveswho are livfng with them at their present place of military service. The questions presented fin your request are ‘ as follows:’ 1. Can the wife of a member of the armed forces maintaining ~legal residence in Texas ac- quire such legal residence by virtue of her .“~’ : marriage, never having actually been a resident of this State, nor of the county wherein the servfce- man maintains hi6 legal residence? 2. if the answer to the above question is in ‘. 1 the negative, can the wife of the member of the armed forces who maintains a legal residence in Texas cast her absentee ballot in the county wherein she main- tained legal residence prior to her marriage (assum- ing that she formerly resided in a county of Texas)? 3. If the lnsw6r to question number 1 is in the affirmative, then is lt correct to assume that she must have been married to the service member for at ._ least 12 months before she can vote? 4. If the anewer to question number 1 is in the affirmative, would the wife of the member of.the ,, armed fo r c es lcquIr6 legal residence in Texas by virtue of the marriage, even if she Were not resid- ing with the servtce member at his place of military duty? , - “. Hon. Tom Reavley, Page 2 (S-207) The amendment of November 2, 1954, removed the vot- ing disqualification previously imposed on members of the regu- lar military eSt6bliShmtntS and added a provision reading as follows: “Any member of the Armed Forces of the United States or component branches thereof, or in the military service of the United States, may vote only in the county in which he or she resided at the time of entering such service so long as he or she is a member of the Armed Forces.” In Attorney GSnSral’S Opinion S-148 (19%) it was stated: “The constitutional amendment does not change th6 rules for determining what place is the legal residence of the voter, nor does it mean that in all circumstances a person in ihilftary service will be entitled to claim a voting residence in the county of which he was a resident at the time he entered 66rViC6. Place of’residence is still to be determined in the same way as it has always been. Absence from the county or State for the purpose of performing military service does not of itself cause a loss of residence, but it is possible for a person to abandon his old residence and acquire a new residence during time of service.” It is seen that the restriction on voting by military personnel to the county of residence at the time of entering service has no direct bearing on the answers to your questions. Its only effect, so far as these questions are concerned, is to magnify the importance of the questions by increasing the number of instances in which they are relevant. Residence for voting purposes means legal residence or domitiii6, as distinguished from actual residence or actual place of abode. Snyder v. Pitts,lSO Tax. 407,241 S.W.2d 136 (1951). It has also been held that the place of residence of a married woman for voting purposes is where her husband re- sides. Harvtll v. Morris, 143 S.W.2d 809 (Tex.Civ.App. 1940). According to the common law rule, which prevails in Texas, the husband has the right to select the family domicile, and the family domiCil6 is th6 domicile of both the husband and the Wife. McGehee v. Boedeker, 200 S.W.2d 697 (Tex.Civ.App. Hon. Tom RSaVlSy, Page 3 (S-207) 1947); Pestle v. Postle 280 S.W.2d 633 (Tex.Civ.Ap 1955) ; Stone v. PhilliD 1422 216 176 ~S.W.2d 932 (19&,; 23 J Husbazi and WTa; 9 8 There are certain excep- t,%s %*ihfs rule, a6 wher& the;6 has been an abandonment or separation with the intention of no longer maintaining mari- tal relations, but it is assumed in this opinion that the husband and wife intend to continue the marriage. With respect to a person who has the right to select his domicil6, there must be an intention to make a certain place his permanent home coupl6d with actual physical resi- dence at that place before it b6COmSS his domicile. Snvder v. Pitts, supra; Ma or v. Lo 155 S.W.2d 617 (Tex.Civ.App.1941). -the -+nd domici 6 s the person may thereafter have his place of abode at a diiferent place under certain circum- stances (e.g., ‘whil6 in military SSrViCS) without lOsing this dOmicil6, but there must have b66n an actual r66idSnCS at the place of domicile before it b6COm66 fix6d,intention alone not being SUffiCiSnt. The courts of this State have held that the actual physical presence of a married woman is not essential to the establishment of h6r domicile, which is fixed by operation of law. In Henderson v. Ford, 46 Tax. 627(1877), it was held that upon the marriage in Alabama of a Texas resident with a woman who was a resident of Alabama, with the intention to make Texas their permanent residence, the wife immediately acquired a domicile in Texas although her husband did not re- turn to Texas for several months and she did not come to Texas until two years therSaft6r: “By the marriage, as has been said, Mrs. Bohanon acquired a domicile in Texas. H6r temporary absence, with the consent of her husband, evidently did not dSpriV6 her of the rights to which she .was thereby entitl6d.” A similar holding’was made in Clements,v. Lacy, 51 Tax. 150 (1879). ~ThSS6 cases involved homestead rights rather than voting rights. The drux of your questions is whether this rule also applies to voting rights. We have not found any square holding -. on this point in Texas, but dictum in Harwell v. Morris, supra,~ supports the same rule. In that case a woman who was a resident of Randall County married a, man who had formerl~y lived in Oldh&m County but who at the time of marriage was living at Amarillo, in Potter County, ,where h6 was employed by the United States Government. The husband and wife estab- lished living quarters at Amarillo and had continuously ‘. Hon. Tom Reavley, Page 4 (S-207) lived there since the marriage. Both the husband and the wife voted at an election in Oldham County, and their VOt6s were challenged in an election contest. At the trial the husband testified that h& had no fixed intention to return to Oldham County; The Court of Civil Appeals held that neither the hus- band nor the wife was a resident of Oldham County at the time of-the SlSCtion, but said: “If it had been shown that Gene Halliburton still claimed Oldham County as his residence or that 1 t was his intention to return there after his employment with the Soil Conservation Service had ceased, then neither his absence on the business of the United States nor the SStablishmSnt by him and his wife of a residence in Amarillo in the manner in which they did would have : forfeited their residence in Oldham County. They still would have had the right to maintain their residence there if they desired to do so.” Thus it appears that ~the wifers re.sidence for voting purposes,as well as the huebandrs, would have been in Oldham County if that had continued to be the legal residsnce of her husband, even though she was not a resident of that county at the time of the s marriage and had not lived there since the marriage. In other Jurisdictions which follow the common law rule, it has b66n held that the wife acquires the domicile of the husband without h6r having actual1 lived at the place of domicile. See 17 Am.Jur.,Domicile, % 3ti. However, there are al- so decisions to the effect that residenC6 for voting purposes and domicile are not 8 See 18 Am.Jur s 61. In Dorsey v. Br g:Ly?;i Ill. 250, 52 N:k.E:z;t@%e, it was held that a married woman, by operation of law, .rnsy ha:e a domicile in a place.*ihere she has never been, but that she did-not become a r6SidSnt~ for Votin!3 Durnoses until she was actually physickly present at that-piack. Also see Snyder v. Callahan. 129 Atl. 41~0 (N.J.Circ.Ct. 1925). In Willrerssn v. 236Ala. 104. 181 So. 296 (1938), the court said that the %icile of the husband becomes the domicile of the wife upon marriage, but.‘.that’;if: the husband has merely a temporary abode in the county where they live, being a resident and qualified voter of another county, and the husband and wife establish . no family residence facto & animo prior to the date of the election, the wife.~~stil~a legal voter in her home town. But Campbell v. Ramsey, 150 Kan. 368, 92 P.2d 819, 832 (1939), held that a woman who married and moved to Washington, D.C., where her husband was in the employ of the United States Hon. Tom Reavley, Page 5 (S-207) Government (and who apparently had lived there ever since the marriage) could not vote in the place of her residence before her marriage. The court said that the legal residence of the wife was that of her husband, and his residence for the purpose of voting was the place which he regarded as his place of rSSfdSnc6 when he entered the service of the United States. While the question is not free from doubt, either from the standpoint of precedent or from the standpoint of the purpose of the length-of-residence requirement, we are of the opinion that under the law in Texas the domicile of the wife fixes th6 place where she may vote, and that her physical presence is not essential to establish her right to vote there, Your questions assume that a married man*s legal residence may continue to be the same as it was bSfOr6 marriage although his wife has never actually lived at that place. This assumption is correct, but for clarification of this point some attention should be given to Article 5.08 of Vernonrs Election Cods, which provides that the residence of a married man is where his Wife resides. This statute does not mean that the place of actual abode of the wife is determinativ6 of the husbandt s rSsidSnC6. It means no more than that the place ,SSlSCted and 6stablished~by the husband as the family domicile 1 for the wife is also his domicile. In other words, the domi~- tile 6r;.lKgal: tdsidenct:;of:: the.:hu$bind. and..the:.wffe are, the same, ‘and: the ~~o~tro~1ing~:factor’:in:.de~6~inirig:.the:.ddmic~16 of the husband, where actual residence or claimed legal residence of the husband is at a different place, is the place he has SSlSCted and established as the domicile for the wife. Major 1% S.W.2d 617 (Tex.Civ.App.1941). In Harwell v; Morris, wh.24 809,816 (Tex.Cfv.App. 19&O), the court said: ,I It has been the law of this State since an eariy’diy that the.place of residence of a married woman is where her husband resides. Lacey v. Clem- ants, 36 Tax. 661; Henderson v. Ford, 46 Tex. 627; Haymond v. Haymond, 74 Tax. 14;12 S.W. 90; Russellrs Heirs v. Randolph, 11 Tax. “It has never b66n the law in Texas that th6 r6sidenCS of the husband is drawn to that of the wife happen, for a time, to be at diffSr6nt itatfOnS.7 Th6 DUlC was not changed by the of Art.-2958 R’C S 1925 bow Article 5.08, Vernonrs Rl6ctiOn’C~d~~~‘uhiich provides that. the Hon. Tom Reavley, Page 6 (S-207) residence of a married man is where his wife re- sides. That act was passed in 1905, long before suffrage was extended to women in Texas and.had reference only to the residence of the husband, who, at that time, was the only member of the community who wae entitled to vote, and it was designed only to provide a criterion by which the husbandts residence could be definitely estab- lished in case of doubt as to his--not the wifets --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 or conduct of the husband.” Also see Op. No. 1935 Report & Opinions of the Attorney Gener- al of Texas, 1916-1918, p. 288. Where the absence of the husband from his fixed place of legal residence is under circum- stances which do not cause a loss of residence (e.g., absence in military service), the fact that his wife also has her place of abode with him or at some other place during his absence does not cause a, loss of legal S.W.2d 663 (Tex.Cfv.A p. 126 (Tex.Civ.App.1940 P; Civ.App. 1948). In the light of the foregoing discussion, we shall now answer your questions. 1. Your first question is answered in the affirmative. In the eyes of Texas law, the wife of a member of the armed forces who maintains his legal residence (domicile) in Texas acquires the same legal residence by virtue of the marriage without’.her~:having actually lived in this State or in the county of her husbandts domicile; and upon fulfilling the length-of-residence requirements she could vote in this State if otherwise qualified. However, her status under Texas lawwould not determine her status under the law of some other stiltkz. For example, if at the time of marriage the wife was a resident of a State which recognized her right to select her domicile or voting residence, she might still ,be considered a resident of that State under its laws and entitled to vote there. Of course, if she votes in some other State she could not also vote in Texas. 2. If at the time of marriage the wife was a resi- dent of Texas but of a different county from her husband, up- on marriage she loses her former residence and she cannot thereafter vote in that county. She can vote only in the county and voting precinct where her husband maintains his legal residence. Hon. Tom Reavley, Page 7 (S-207) 3. Your third question is answered in the affirmative. To be a qualified elector, a person must have resided in Texas for one year. Tax. Const. Art. VI, Sec. 2. The wife acquires a legal residence in Texas immediately upon martiage, but she cannot vote until she has held that status for one year. 4, Your fourth question is answered in the affima- tive. The servicemanss wife would acquire legal rSSidSnC6 in Texas by virtue of the marriage, even though she was not aiv- ing with the serviceman at l&is place of military duty. In the absence of an abandonment or a separation with the inten- tion of no longer maintaining marital relations, the fact that the wife was not living at the place where the husband was stationed would be immaterial. The wife of a member of the armed forces who maintains his legal residence in Texas acquires the same legal residence by virtue of the marriage with- out Herr having actually lived in this State. or in the county of her husbandts legal residence. Upon fulfilling the length-of-residence requirements she would be entitled to vote in this State if other- wise qualified. If at the time of marriage the wife was a resi- dent of Texas but of a different county than her . husband, upon marriage she loses her former residence and she cannot thereafter~vote in that county. She can vote only in the county and voting precinct where her husband maintains his legal residence. APPROVED: Yours very truly, J. C. Davis, Jr. JOHN BEN SHEPPERD Reviewer Attorney General W.V. Geppert Reviewer L.W. Gray B’*a?- Special Reviewer Assistk Davis Grant First Assistant John Ben Sheppard Attorney General MRWrcm:vb