Untitled Texas Attorney General Opinion ( 1984 )

The Attormy General of Texas
JIM MAlTOX Nsvember 14. 1984
Attorney General
Honorable Ray Parabee opinion No. ~~-231
Supreme Couti Bullding
P. 0. Box 12549 Chairman
*usm. TX. 78711.2549 State Affairs Comml’ttee Re: Whether an employee resident
512l4752501 Texas State Senate of a state school is a legal
Telex 910/87C13S7
P. 0. Box 12068. Calpitol Station resident of the surrounding
T&copier 512i4750266
Austin, Texas 78711 independent school district
714 Jackson. Suite 700 Dear Senator Farabee:
Dallas. TX. 75M2.4M6
214174269U
You have informed us that an employee residing on the campus of a
state school seeks election to the board of trustees of the indepen-
4824 Albwla Ave.. Suite 160 dent school district in which the state school is located. The state
El Paso. TX. 799052793 school Is a star:e correctional facility for delinquent children
91515333464 administered by tt,e Texas Youth Commission pursuant to chapter 61 of
the Ruman Resource19 Code. The state school is not an independent
.dol Terra suits 700
school district having geographical boundaries; it is a state-created
“ourton. TX. 77002.3111 and state-administered facility having no elected board of trustees.
7lY22MSS9 All employee residents of the state school are employees of the state
of Texas. Tbe geographical boundaries of the independent school
district completely enclose the state school. The employee in
606 Broadway. Suite 312
Lubbock. TX. 79401.2479
question has resided on the campus of the state school for more than
SW747.5239 six months, has voted in previous independent school district
elections, s sc~~ol;as
district, children attending the independent school
4309 N. Tenth. Suite B
McAllm. TX. 7S501.1SS5
512,SS2-4547 You ask us the following questions:
1. Uader the facts as outlined above, does the
200 Main Plaza, Suits 400
applicant for a place on the district ballot meet
San Antonio, TX. 762052797
the resld’ency requirements of article 1.05 of the
51212254191
Election Code for a ‘district or political sub-
division, ’ so that he may appear one the ballot as
a candidate for the board of trustees of the
inaependznt school district?
2. If the applicant does not satisfy the
requirements of article 1.05 of the Election Code,
is he still qualified to vote in the elections of
the independent school district pursuant to
article KC, section 2 of the Texas Constitution?
3. If the applicant is not permitted to be a
candidat? or to vote in the independent school
n. 1036
Honorable Ray Farebee - Page Z! (JU-231)
district elections by virtue of his status as a
state employee reaidtng on the campus of a state
facility, does this. prohibition constitute a
denial of equal Ilrotection or a deprivation of
liberty under thd! Fourteenth Amendment of the
United States Constitution?
We conclude, first, that the state employee applicant does meet the
residency requirement of ar!:icle 1.05 of the Election Code, and that
his name may appear on the b,LLlot as a candidate for a position on the
board of trustees of the independent school district. A state
employee cannot conclusively be presumed to be a nonresident of a
political subdivision by vj,rtue of his status as a state employee
residing in a state enclave.
Article 1.05, V.T.C.S.. of the Election Code provides in part as
follows:
Subdivision 1. No person sball be eligible to
be a candidate for, or to be elected or appointed
to, any public trlective office in this state
unless he is a citizen of the United States
eligible to holsd such office under the
Constitution and laws of this state . . . and
unless he will hav’e resided in this state for a
neriod of 12 monthe next nrecedlnn the annlicable
iate specified below, and for an; public** office
which is less than statewide, shall have resided
for six months ntgt preceding such date in the
district, county, precinct, municipality. or other
political subdivision for which the office is to
be filled. (EmphasK added).
The residency requirement for any candidate for any public
elective office in Texas is 12 months in the state preceding the last
day his name may be placed on the ballot and 6 months in the state
preceding such date In the distrkt or political subdivision. The
Court of Civil Appeals has held that a school district was a “district
or political subdivision” within the meaning of article 1.05 of the
Election Code. See Brown v. Patterson, 609’S.W.2d 287 (Tex. Clv. App.
- Dallas 1980, T writ). ?ou indicate that the applicant, as an
employee ot the state, has c#l?sided on the campus of the state school
for more than six months.
What constitutes “reslinsnce” is defined in article 5.08.(a) of
the Election Code: “domicj.le; i.e., one’s home and fixed place of
habitation to which he intends toxurn after any temporary absence.”
The Election Code does not: define “residence” for the purpose of
running for public office, but the term has been construed to mean the
same for the purposes of voting as for the purposes of running for
political office. Cf. Prince v. Inman. 280 S.W.2d 779 (Tex. Civ. App.
---
c
Ronorable Ray Farsbee - PaSe 3 (JM-231)
- Beaumont 1955, no vrit). For the purpose of voting, article
5.08.(i) states that
[t]he residence of one who is an officer or
employee of the g;overnment of this state or of the
United States shall be construed to be vhere his
home was before . . . unless he has become a bona
fide resident of the place where he is in
government servic:fr. . . .
Determining the question of residency is a question of intent and
factual circumstances. It ,Ls not within the authority of this office
nor within the discretion of the official receiving the application to
determine those factual qnastions. See Parker v. Brown. 425 S.W.2d
379, 381 (Tex. Civ. App. - Tyler 1968, writ) (question of residence
is to be judicially determined); see also Mills v. Bartlett, 377
S.W.2d 636, 637 (Tex. 1'364) (residence Is determined by factual
circumstances).
In any event, article 5.08 when read with article 1.05 cannot
operate to disenfranchise: a state employee who lives within the
geographical boundaries of the independent school district merely
because his place of resid'ence is located on a public enclave. The
right to vote and to run for a political office are basic fundamental
rights guaranteed by tha First Amendment to the United States
Constitution. Dunn V. Blumstein, 405 U.S. 330 (1972); Evans v.
Cornman. 398 U.S. 419 (1975); ,ington v. Rash, 380 U.S. 89 (1965).
Any statutory provisions which restrict the right to hold public
office should be construei. strictly against ineligibility. See Chapa
v. Whittle, 536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976
no writ).
The factual situation as presented is governed by the principles
of Carrington v. Rash, supta, and Evans v. Co-n, supra. In
Carrington, the United Swtes Supreme Court held that article VI.
section 2 of the Texas Constitution was violative of the equal
protection clause of the Fourteenth Amendment because the provision
established a conclusive presumption against servicemen from acquiring
residency for voting purposes. However, the Court did conclude that
"Texas ha[d] a right to require that all military personnel enrolled
to vote be bona fide resitients of the community." 380 U.S. at 93-94.
At that time the state of Texas provided no means by which a soldier
could establish a bona fide residency in the county where he was
stationed.
Similarly, in Evans '5 Cornman. 398 U.S. 419 (1970). the United
States Supreme Court considered the issue of whether persons living on
a federal enclave could acquire residency for voting purposes. In
m. &. the Permanent Board of Registry of Montgomery County.
Maryland, ruled that perwns living on the grounds of the National
Institutes of Health [hereinafter NIH]. a federal enclave located
Honorable Ray Parabee - Page s!, (Jn-231)
withla the geographical boundaries of the state, did not meet the
residency requirement of the! Maryland Constitution. Accordingly, NIA
residents were denied the right to vote In Maryland elections. The
Court in striking down the provision of the Maryland Constitution as
violative of the equal protection clause of the Fourteenth Amendment
to the United States Constitution, held that the state could assert no
overriding interest to restrict the right to NIH enclave residents;
and, that NIB residents wer I! residents of Maryland and were “just as
interested in and connected with electorial decisions . . . as [are]
their neighbors who lived off the enclave.” -Id. at 426.
We conclude that Carrington and Evans prohibit election officials
from applying article 1.05 x circumscribe the right of a state
employee to acquire residency to run for public office by virtue of
the fact that he resides OIL a state enclave, particularly, as here,
when the state enclave is l.c~cated within the geographical boundaries
,of the political subdivision in which he seeks office. The purpose of
article 1.05 is to provide better representation by assuring that the
voter will be better acquainted with the qualifications and views of
the candidate and the candidate will be acquainted vith and responsive
to the needs and desires of the voter. See Brown v. Patterson, supra.
By construing article 1.05 jn favor of theresidency of the applicant,
the statutory purpose ~111 rot be frustrated.
Since your second and third questions are ~predicated on a
negative answer to your firt,t question, it ia not necessary to address
them.
SUMMARY
Article 1.05 o:i the Election Code does not bar
a state employe,? from establishing residency
within an indepentlent school district by virtue of
the fact that he resides on a state facility
located within the: geographic boundaries of the
independent school district. The applicant,
having met the res,idency requirement may obtain a
place on the ballot: for the position of trustee of
the independent school district.
I
Very truly y
J JIM
L
MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
p. 1039
Eonorable Ray Parabee - Pagr 5 (JM-231)
DAVID R. RICBABDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood