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 A. 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


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