Untitled Texas Attorney General Opinion ( 1986 )

December 31, 1986
Ronorable Al Luna Opinion No. Jh-611
Chairman
Science and Technology Committee Re: Residence of persons who winter
Texas Rouse of Representatives in Texas, for purposes of voting,
P. 0. Box 2910 operating a motor vehicle, certifl-
Austin, Texas 78769 cates of title, and probate, inher-
itance tax and marital property
laws
Dear Representative Luna:
You ask several questions concerning the legal status of persons
who reside in Texas foi a limited period of time each year and reside
in another state the major part of the year. Your questions are
prompted by concern over
the ever increasing number of so called ‘Winter
Texans’ who spend the winter season here in Texas
but who continue to return to their home states
each spring. . . . [Wlhile they arc in Texas many
of these admittedly temporary visitors to our
state register to vote and actually vote in our
local elections. This, In spite of the fact that
In most situations, these winter visitors will
continue to accept the benefit of special real
estate tax treatments afforded residents of their
home state; will continue to maintain their auto-
mobile registration in their home state; will
continue to use the driver’s license issued by
their home state; will maintain their registration
to vote in their home state and vi11 continue to
pay income tax in their home state showing their
residence as that state.
It is in this setting that you ask the following questions:
1. Would a person who, for example. spends the
winter in Texas, but continues to accept the
benefits of residence In another state (special
tax rates. registration to vote, special homestead
exemptions, lower tuition or fees at another
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Eonorable Al LUM - Page 2 (J&611)
state’s facilities, etc.) and who %utends to
return to another state violate our laws when he
or she registers to vote and/or votes?
2. Would a’ person who knows that another is
not a resident of Texas (for reasons similar to
those set out above) violate our laws by en-
couraging or assisting such nonresident to
register and/or to vote?
3. Would a person who registers to vote in
Texas establish a residence so as to be required
to Title his or her motor vehicle in Texas; have
it annually inspected; as well as be required to
surrender his or her out-of-state driver’s license
as well as to take and pass the driver’s license
test in Texas?
4. Would a person who is registered to vote in
Texas be subject to our probate and inheritance
tax laws?
5. Would a person who registers to vote in
Texas eatabllsh a residence so as to establish
. jurisdiction for the purposes of the application
of our family and marital laws? In this regard,
would our cosmuuity property laws be applied to
such person?
The term “residence” defies easy definition. The Texas Supreme
Court advises that the term
Is an elastic one and is extremely difficult to
define. The meaning that must be given to it
depends upon the circumstances surrounding the
person Involved and largely depends upon the
present intention of the individual. Volition,
intention and action are all elements to be
considered in determining where a person resides
and such elements are equally pertinent in
denoting the permanent residence or domicile.
Mills v, Bartlett, 377 S.W.2d 636, 637 (Tex. 1964). The term takes
its meaning in light of the object or purpose of the law in which it
is employed. Switzerland General Insurance Co. v. Gulf Insurance Co.,
213 S.W.2d 161 (Tex. Civ. App. - Dallas 1948. writ dism’d). Depending
as it does on factual ci%astaoces and Individual intention, the
question of residence is judicially determined. See Parker v. Brown,
425 S.W.Zd 379. 381 (Tex. Civ. App. - Tyler 1968,o writ); Attorney
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Ronorable Al Luna - Page 3 (J’M-611)
General Opinion JM-231 (1984). The factual cfrcumstances you describe
would be relevant for a court to consider in determining whether a
person is a Texas resident for the purposes you inquire. They do not,
however, reveal the present intention of the individual to become a
Texas resident and, thus, cannot support categorical answers to your
general inquiries. The single fact that a person registers to vote In
this state does not in itself determine whether the person is a Texas
resident for any of the purposes you inquire. The remainder of this
opinion will explain why this is so. We note, however, that there is
ordinarily a strong presumption that, ff an individual registers to
vote in Texas, he will be considered a resident for the other purposes
about which you inquire.
You first ask whether a person who spends the winter in Texas but
accepts the aforementioned benefits of residence elsewhere and who
intends to return to another state violates Texas law by registering
to vote and voting in Texas. Your second question is whether a person
“who knows another person is not a resident of Texas” violates Texas
law by encouraging or assisting the nonresident to register to vote
and/or vote.
To be eligible to vote in Texas, a person must
(1) be a qualified voter as defined by Section
11.002 [of the Election Code] on the day the
person offers to vote;
(2) be a resident of the territory covered by
the election for the office or measure on which
the person desires to vote; and
(3) satisfy all other requirawents for voting
prescribed by law for the particular election.
Election Code 511.001. A qualified voter is a person who, among other
requirements, is a resident of Texas and is a registered voter. Id.
111.002(S), (6). To be eligible to register to vote, a person nu8t,
inter alia, be a resident of the county in which the application is
made. Id. 113.001(a) (5). Section 1.015 of the Election Code sets
forth residency requirements for voting purposes:
(a) In this code, ‘residence’ weans domicile.
that is, one’s hone and fixed place of habitation
to which he intends to return after any temporary
absence.
(b) Residence shall be determined in accor-
dance with the common-law rules, as enunciated by
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Honorable Al Luna - Page 4 (a-611)
the courts of this state, except a8 otherwisa
provided by thir coda.
(c) A person does not lose hia residence bx
leaving his hone to go to another place for
tamporary purposes only.
(d) A person does not acquire a residence in a
. place to which he has cons for tamporary purposes
only and without tha intention of making that
place his home.
(a) A person who is an inmate in a penal
Institution or who is an involuntary Inmate in a
hospital or eleenosynary institution does not,
while an inmate, acquire residence at the place
where the institution is located. (Emphasis
added).
Section 1.015 defines “residence” for voting purposes In terns
of dwicile. Though often used interchangeably, “residence” and
“domicile” are not technically rynonynous. Residence Is considered a
lesser-included element of domicile. Snyder v. Pitts. 241 S.W.2d 136,
139 (Tax. 1951). Residence requires a person to be living and
physically present.in a particular locality. but domicile additionally
requires the person to live in the locality with the intention of
making it his fixed and permanent hone. Skubal v. Skubal, 564 S.W.2d
45 (Tax. Civ. App. - San Antonio 1979, writ dism’d). Thus, it is
often said that a person way have as many residences as he or she
choosas, but can have only one domicile. Switzerland General Insurance
Co. v. Gulf Insurance Co., s_upra. The fact that one resides elsewhere
is not sufficient to destroy the person’s domicile as long as there is
the requisite intent to re-tain ihat domicile. Los Angeles Airways,
Inc. v. Lummis, 603 S.W.2d 246 (Tex. Civ. App. - Rouston 114th Dist.1
1980). cert. denied, 455 U.S. 908 (1982). Domicile Is lost, however.
when the person removes himself with the intent not to return. See
Commercial Standard Insurance Co. v. Nunn, 464 S.W.2d 415 (Tex. G.
APP. - Texarkana 1971, writ dism’d).
Subsection (b) of section 1.015 provides that residence is deter-
mined, except as otherwise provided in the Election Code, in accor-
dance with the coamon law as announced by Texas courts. The courts
advise that for voting purposes , the question of residence is answered
by reference to actual facts and circunstances, including the inten-
tion of the person seeking to vote. Guerra v. Pena, 406 S.W.2d 769.
776 (Tex. Civ. App. - San Antonio 1966, no writ). The essential
elements of a domicile are an actual residence and the intent to make
it one’s permanent home. See Texas v. Florida, 306 U.S. 398, 424
(1939); Snyder v. Pitt*,. 241xW.Zd at 139. “Ewe” is defined to mean
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Honorable Al Luna - Paga 5 (m-611)
a person’s “true, fixed and permanent home and principal eetablleh-
ment , and to which, whenever he is absent, he has the intention of
returning.” Su der v. Pitts, 241 S.W.Zd at 139 (citations omitted).
Subsections + and (e) of section 1.015 wake clear that
domicile is neithar affected nor datermined by a person’s tamporary or
involuntary presence in a particular locality or institution.
Ooe court has held that a person who registered to vote in a
particular county represented that it was his “current permanent
residence address” under the Election Code. Uijaree )v. Paex. 534
S.W.Zd 435 (Tex. Civ. App. - Amarillo 1976, so writ .~ Given the
code’s definition of “residence,” it can be argued that a person who
registers to vote thereby represents that the county is also his
domicile. It is clear, however, that individual facts, circumstances.
and intentions will determine whether such representations are true.
The fact that a person who registers to vote in Texas intends to
return to another state to reside for a portion of the year does not
In itself reveal the person’s intention to maks that state his “home
and fixed place of habitation.” a, Every v. Supervisors of the
Madison Checklist, 474 A.2d 1059 (N.H. 1984) (voter applicant
domiciled in New Eamoshire though maintaining residence in another
state which had previously been “his domicile). It is of uo moment
that the person pays income taxes’ to the other state, for states may
tax income earned there by,residents and nonresidents alike. See,
s, Shaffer v. Carter, 252 U.S. 37, 49 (1920) (states way tax income
of nonresidents earned in the taxing state). Also, states may not
grant special tax advantages to residents of the state while denying
the same benefits to nonresidents who own Identical property or
conduct the identical activity In the state and otherwise qualify for
such treatment solely for the purpose of protecting local economies or
shifting costs to nonresidents. See, e.g., Williams v. Vermont, 472
U.S. -, 105 S. Ct. 2465, 86 L. Ed. 2d 11 (1985) (such treatment
violates equal protection clause of U.S. Constitution); Spenyr v.
South Carolina Tax Commission, 316 S.E.Zd 386 (S.C. 1984). aff d per
curiam, 471 U.S. 82, 105 S. Ct. 1859, 85 L. Ed. 2d 62 (1985) (denial of
state income tax deduction to nonresidents but allowlng deduction by
state residents violates privileges and immunities clause of Fourth
Amendment to U.S. Constitution). Thus, the fact that the person
enjoys some special tax benefits in another state does not con-
clusively establish that the person is domiciled in that state.
Finally, the fact that a person has voted outside the election
district in which the application to vote is made is a relevant and
important fact to be considered in determining the person’s residence
qualification, but it is not controlling. See Cramer v. Graham, 264
S.W.2d 135 (Tex. Civ. App. - San Antonio 1954, writ ref’d) (other
facts and circumstances may be taken into account).
In short. whfle the circumstances you describe would be relevant
for a court to consfder in determining whether a person meets the
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Honorable Al Luna - Page 6 (JM-611)
residence requirements of the Election Code, fhey do not support a
categorical answer to your general inquiry. Each case must be
decided according to its own facts. Sea Hills v. Bartlett, B. An
Attorney General's Opinion cannot appropriately resolve such factual
disputes. &. Attorney General Opinions 511-569 (1986); m-394
(1985); U-849 (1971). Indeed, if we aseuma the stipulated facts of
your first question, a court or jury could reasonably find that an
individual did not intend to reside in%, and therefore, was not
eligible to register to vote.
Assuming the stipulated facts are sufficient to persuade a court
that a parson registering to vote in Texas does not have the requisite
intent CO make his domicile in this state, the person would not
violate the provisions of the Election Code merely by submitting an
application to register to vote. However, a person, knowing he is
ineligible to vote, does commit an offense if he votes or attempts to
vote in an election in this state.
In your letter requesting this opinion, yeu quote article 15.43
of the Election Code of 1951. which decreed that any person who "shall
swear falsely as to his own qualifications to vote" or as to the
qualifications of another "shall be guilty of a felony of the third
degree." With the exception of chapter lb, which was retained, the
Election Code of 1951 was repealed in its entirety and recodified in
1985. See Acts 1985, 69th Leg., ch. 211, 59, at 802, 1076. Article
15.43 wag not included in the recodification, although other pro-
visions pertaining to illegal voting were recodified. See Elec. Code
5964.011; 64.012; 276.003 (replacing 1951 Election Codearts. 15.41,
15.45, 15.48, 15.50, 15.52, 15.61). The omission of previous laws
from a code has the general effect of repealing the omitted nro-
vieions. 1A Singer, Sutherland Statutory donet&tion 528.08 (rev.
1985) (citing American Indemnity Co. v. City of Austin, 246 S.W. 1019
(Tex. 1922)). See also Macedonia Baptist Church v. Farm h Rome Savings
6 Loan Ase'n., 110 S.W.Zd 1013 (Tex. Civ. App. - Dallas 1937. writ
dism'd) (omission of statutes from 1925 codification of civil statutes
repealed. such statutes). Bowever, where a valid and operative
provision is omitted through oversight, it may be held to continue in
effect. 1A Singer, Sutherland Statutory Construction 528.08 (rev.
1985). The manner in which the legielature recodffied the provisions
of the 1951 code concerning illegal voting, i.e., by combining several
of the old provisions into a fewer number of= sections, convinces
. In a brief submitted in connection with this opinion. the
Secretary of State suggests that seizing upon particular criteria Co
determine residence, -, the owoership of property in another state,
would violate Texas law and would require the state to submit such
practice to the Justice Department for preclearance pursuant to
section 5 of the Voting Rights Act. 42 U.S.C. 51973c.
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Eonorable Al Luna - Page 7 (J&611)
us that the*omiseion of former article 15.43 from the new Election
Code was not an oversight. It is apparent, then, that a person
unqualified to vote does not commit an offense under the Election Code
merely by regietering to vote in Texas. A person unqualified to vote
does, however, ctit an offense if the person “votes or attampte to
vote in an election in which the person knows he is not eligible to
vote." Else. Code 164.012(a)(l). Also, an election officer who
knowingly "permits an ineligible voter to vote without having been
challenged" cosmite an offense under the code. Elec. Code
063.012(a)(l).
This conclusion should not suggest that a person who submits
false information on a voter registration application will escape
punishment altogether. Section 37.10(a) of the Penal Code provides
that a person commits an offense if he
(1) knowingly makes a false entry in, or false
alteration of, a governmental record;
(2) makes, presents, or uses any record, docu-
ment , or thing with knowledge of its falsity and
with intent that it be taken as a genuine govem-
mental record; or
(3) intentionally destroys, conceals, removes,
or otherwise impairs the verity, legibility, or
availability of a governmental record. (Emphasis
added).
"Governmental record" is defined to maan anything
(A) belonging to, received -by. or kept by
government for information; or
(B) required by law to be kept by others for
information of government.
Penal Code 137.01(l). In our opinion, the definition of governmental
record is broad enough to include a voter registration application.
Cf. V.T.C.S. art. 6252-17a, 12(2) (definition of "public records").
Accordingly, we believe that a person who knowingly makes a false
entry on a voter registration application cdts an offense under
section 37.10 of the Penal Code.
A person who "swears falsely" as to the qualifications of another
person to vote does not commit an offense under the new Election Code.
Both article 15.44 of the 1951 code, which made it unlawful for a
person to "knowingly and intentionally induce[] or attempt[] to induce
another to swear falsely" as to his qualifications to vote, and
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Eonorable Al tuna - Page 8 (JM-611)
article 15.42, which made it illegal to "procure, aid, or advise
another to . . . vote at any election, knowing that the person is not
qualified to vote,,, were omitted from the new Election Code. Section
13.007 of the 1985 code, however, provides that a person commits an
offense if he "requests, commands, or attsmpte to induce another
person to make a false statemant on a [voter] regietration appllca-
Mon.” Thus, despite this considerable revision of former election
law provisions, your second question can be answered in the affirma-
tive, provided the person is encouraging a person unqualified to vote
to make a false statement on a voter registration application.
As a final note, the secretary of state advises that the exclusive
procedure for challenging a voter applicant's qualifications is
provided in sections 13.074 to 13.080 of the Election Code. Sec'y of
State Election Law Opinion JWP-15 (1983). The secretary has also
promulgated a rule prohibiting the use of any additional questionnaire
or the requirement of additional written information from a voter
applicant who has properly completed a registration form. 1 T.A.C.
sai.45 (1978).
Your thirdinquiry concerns whether a person who registers to
vote in Texas establishes a residence in this state such that the
person Is required to obtain a certificate of title from the Depart-
ment of Public Safety for his or her motor vehicle as well as have the
motor vehicle annually inspected in this state. You also ask whether
under these circumstances the person must surrender his or her out-of-
state driver's license and pass the driver exsmination in this state.
The Certificate of Title Act was enacted for the purpose of
reducing and preventing, inter alla, the theft of motor vehicles, the
importation and trafficking of stolen vehicles in this state, and the
sale of encumbered motor vehicles without the required disclosure to
the purchaser of any liens for which the vehicle stands as security.
V.T.C.S. art. 6687-1, 51. Section 27 of article 6687-l requires a
person seeking to sell or dispose of "any motor vehicle required to be
registered or licensed in this State” to apply for a certificate of
title for such vehicle. Section 30 of the act sets forth various
documentary requirements for vehicles brought into this state which
were last regietered and/or titled in another state or country and for
vehicles not manufactured for sale in the United States. Subsection
(a) of section 30 also requires the owner of each such vehicle to have
the vehicle inspected for compliance with safety standards before the
vehicle may be registered or titled in this state. See also V.T.C.S.
art. 67Old, 5142A; Attorney General Opinion Jl4-127 (L-Subsection
(b) of section 30 requires a person , other than a dealer or importer,
who brings into Texas a motor vehicle "which is required to be
registered or licensed within this State,, to apply for a certificate
of title prior to selling, transferring , or encumbering such vehicle.
Art. 6687-1, 130(b). Section 51 makes unlawful any sale, offer for
p. 2738 Y
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Eonorable Al Luna - Page 9 (JM-611)
sale. or offer as security of any motor vehicle without the seller
"then and there” having in his possession a proper receipt or
certificate of title covering the vehicle. Sales made in violation of
the act are void. Art. 6687-1, 153.
The Certificate of Title Act plainly requires every person who
seeks to sell. transfer, or encumber any rotor vehicle in this state
to obtain a certificate of title prior to any such transaction,
regardless of whether the person is a Texas resident. V.T.C.S. art.
6687-1, 5127. 30. The provisions of the act are triggered by the
occurrence of any~ of the listed transactions and not upon the
residency of the owner of a motor vehicle. The significance of
finding that a person is a resident of this state is in determining
the place in which the application for a certificate of title is made.
A Texas resident must make application in the county of his domicile
or in the county in which the motor vehicle is purchased or encum-
bered. Id. 127. A person who brings Into Texas a motor vehicle
registeredor titled elsewhere must make application in the county in
which the transaction occurs. Id. 130(b). Although section 30 does
not so specify, it is apparent that it was intended to apply primarily
to persons who have no Texas domicile. Compare id. 527. Consequently,
the fact that a person has registered to vote in Texas is inapposite
to the question of whether the person must obtain a certificate of
title for any motor vehicle the person owns.
The question of residency will, however, have a bearing on
whether a person must register his motor vehicle in Texas.
Article 6675a-2, V.T.C.S.. requires every owner of a motor
vehicle "used or to be used upon the public highways of this State,, to
register each such vehicle with the Department of Aighways and Public
Transportation. Application is made in the county in which the owner
resides. Id. Article 6675a-6e, section 2. V.T.C.S., permits any
nonresident-%ner of a motor vehicle to "make an occasional trip into
this State" in such vehicle without having to register the vehicle in
Texas. A nonresident is defined as
every resident of a State or Country other than
the State of Texas whose sojourn in this State is
as a visitor and does not engage in gainful
employment or enter into business or an occupa-
tion, except as may be othervise provided in any
reciprocal agreement with any other State or
country.
Art. 6675a-6e. Il. Vehicles subject to license by the state but which
are not authorized to travel on Texas roads for lack of registration
or reciprocity with the state in which it is registered may be
temporarily registered by the department. -Id. 13. The Department of
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Honorable Al Luna - Page 10 (a-611)
Eighwaye and Public traosportation is authorized to enter into
reciprocal agreements with duly authorized officiale of other states
and countries to provide for the regietration of motor vehicles by
Texas residents and nonreeidente. V.T.C.S. art. 6675a-16(a).
The Uniform Act Regulating Traffic on Highways requires every
motor vehicle registered in this state to undergo an annual inepection
for compliance with uniform safety standards. V.T.C.S. art. 6701d,
1140(a). (cl. A vehicle must also be inspected before it may be
registered in this state or a certificate of title may be issued to
its owner. Id. 9142A(a). See also Attorney General Opinion NW-127
0980). A person who operates a vehicle on Texas highways in viola-
tion of these requirements or without displaying a valid inspection
certificate is guilty of a misdameanor. Id. 1140(g). If, however,
the vehicle is licensed in another state and is temporarily and
legally operated under a valid reciprocity agreemant with Texas, the
owner commits no offense by operating the vehicle without obtaining an
inspection certificate in this state. Id. Further, the Texas Depart-
ment of Public Safety may recognize avalid inepection certificate
issued by another state which has an inspection law similar to Texas.
Id. 1140(d). See also Attorney General Opinion MU-127 (1980). The
irupection requirement thus hinges on whether the vehicle must be
registered in this state or on whether the owner desires or is
required to obtain a certificate of title for the vehicle.
Article 6687b, section 2(a), V.T.C.S., prohibits any person from
driving upon the highways of this state without a valid Texas driver's
license unless the person is expressly exempted by the act. Section
10(a) of article 6687b requires every applicant for a Texas driver's
license to be examined by a test of the applicant's vision, ability to
understand highway traffic signs in the English language, knowledge of
the traffic laws, ability to exercise "ordinary and reasonable control
in the operation of a motor vehicle,,, and such other examination that
the Department of Public Safety finds necessary to determine the
applicant's fitness to operate a motor vehicle. Subsection (6) of
section 4 forbids the issuance of a driver's license to any person
required to take an examination unless the person has successfully
passed such examination. Section IO(b) authorizes the department to
promulgate a rule allowing a person holding a valid driver's license
issued by another state to receive a Texas driver's license upon
passing only the vision examination required by section 10(a) and
paying the required fees.
Article 6687b provides a number of exemptions from the licensing
requirements of the act. See id. 13. The act exempts persons holding
--
valid driver's licensee issued by other etatea only if these persons
are not Texas residents. See id. 53(d), (a). (f). Section
-- 3A extends
a new resident of Texas who has in his tiediate possession a valid
driver's license issued by the state or country of previous residence
p. 2740
.
Eonorable Al tuna - Page 11 (J&611)
the privilege of operating'a motor vehicle in this state without a
Texas driver's license for a period of 30. days after entering the
state. For the purpose of llceneing drivers. the Department of Public
Safety defines "resident" to mean every person whose domicile is in
the state of Texas. 37 T.A.C. 115.1(2) (1985). All persons who do
not fall within the scope of the definition era claesifled as non-
residents. Id. 115.1(3). Applicants for a Texas driver's license
wet surrender0 the department all valid driver's licensee in their
poeeeseion issued by any state. V.T.C.S. art. 6687b. 92(b).
Taking each of these provisions into account, it is evident that
the legislature intended all Texas residents to obtain a valid
driver's license issued by the state prior to operating a motor
vehicle on the highways of the state. Rowever, because the term
"resident" has been defined for purposes of drivers' licenses to
include the concept of domicile, mare presence in this state is
ineufficient to require a person to obtain a Texas driver's license
and to undergo the driver's examination of this state. The question
of whether a person must satisfy these requirements, then, depends on
the sams factors that determine whether the person is qualified to
vote in this state. As we have already concluded, the fact that the
person registers to vote does not in itself answer this inquiry.
You also ask whether a person who is registered to vote in Texas
is subject to this state's probate and inheritance tax laws.
The jurisdiction of Texas courts over probate matters is des-
cribed in sections 5 and 5A of the Probate Code. Eowever,while these
courts have subject matter jurisdiction to review any probate matter
brought before them, they may lack venue under the Probate Code and,
thus, may not admit the decedent's will to probate or grant letters
testamentary or of administration. See. e.g., Matter of Estate of
E, 693 S.W.Zd 481 (Tax. App. - Corpus Chrieti 1985. no writ).
Section 6 of the Probate Code provides rules for determining venue in
probate proceedings:
Wills shall be admitted to probate, and letters
testamentary or of administration shall be
granted:
(a) In the county where the deceased resided,
if he had a domicile or fixed place of residence
in this State.
(b) If the deceased had no daicile or fixed
place of residence in this State but died in this
State, then either in the county where his
principal property.was at the time of his death,
or in the county where he died.
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Honorable Al Lund - Page 12 (JM-611)
(c) If he had no domicile or fixed place of
residence in this State, and died outside the
limits of this State, then in any county in this
State where his nearest of kin reside.
(d) But if he had no kindred in this State,
then in the county where his principal estate was
situated at the time of his death.
(e) In the county where the applicant resides.
when administration is for the purpose only of
receiving funds or money due to a deceased person
or his estate from any governmental source or
agency; provided, that unless the mother or father
or spouse or adult child of the deceased is
applicant, citation shall be served personally on
the living parents and spouses and adult children,
if any, of the deceased person, or upon those who
are alive and whose addresses are known to the
applicant.
Texas courts are without jurisdiction to probate the wills of deceased
persons with no domicile or fixed place of residence In Texas who die
outside the state and have no property or next of kin in the state.
Diehl v. United States, 438 F.2d 705, 709 (5th Cir. 1971). e
denied, 404 U.S. 830 (1971). Aside from this qualification, there
appears to be no other limitation on the authority of a Texas court to
admit wills to probate or grant letters testamentary or of administra-
tion.
Clearly, the will of a deceased person who was registered to vote
in Texas may be admitted to probate in this state if the person was
domiciled in Texas at the time of his death. If the person was not
domiciled in the state at the time of his death, his will may still be
admitted to probate in Texas, provided any of the other qualifications
listed in section 6 of the code are met. This answer, however, should
not imply that Texas probate laws are entirely applicable to the
estates of deceased persons whose wills are admitted to probate in
Texas.
Texas courts follow the general rule that the effect and con-
struction of a will is determined by the law of the testator's
domicile to the extent it relates to personal property and by the law
of the state in which the property is located insofar as it concerns
real property. Crossland V. Dunham, 140 S.W.2d 1095 (Tex. 1940); Van
Hoose v. Moore, 441 S.W.2d 597 (Tex. Civ. App. - Amarillo 1969, =T
ref'd n.r.e.1. Each case must be examined in light of its own facts.
Again, the fact that a person registers to vote in Texas is
p. 2742
Eonorable Al Luna - Page 13 (~~411)
ineufficient to determine the extent to which Texas law will control
the disposition and administration of the person's estate.
The eama can be said with respect to the applicability of Texas
inheritance tax laws, although here, too, domicile is a relevant
consideration.
Chapter 211 of the Tax Code establishes the criteria for
determining the amount of tax due the state on the transfer of a
deceased person's property. The code defines "resident" as "a
decedent who was domiciled in Texas on his date of death." Tax Code
1211.001(13). A nonresident decedent is a deceased person who was a
citizen of the United States and was not domiciled in Texas at the
time of his death. Id. 1211.001(11). Property whose transfer is
subject to the state inheritance tax at the death of a Texas resident
includes
real property having an actual situs in this state
whether or not held in trust; tangible personal
property having an actual situs in this state; and
all intangible personal property, wherever the
notes, bonds, stock certificates, or other evi-
dence, if any, of the intangible personal property
may be physically located or wherever the banks or
other debtors of the decedent may be located or
domiciled; except that real property in a personal
trust is not taxed if the real property has an
actual situs outside this state.
Id. 5211.051(c). Property of a nonresident decedent, the transfer of
which becomes subject to inheritance taxes in this state includes
real property having an actual situs in this state
whether or not held in trust and tangible personal
property having an actual situs in this state, but
intangibles that have acquired an actual situs in
this state are not taxable.
Id. 5211.052(c). The application of Texas inheritance tax laws is
zdicated. for the most part, on the existence of estate assets
having an actual situs in Texas. The domicile of the decedent is
significant insofar as it determines the extent to which the transfer
of the decedent's intangible personal property is subject to this
state's inheritance tax. See generally Curry v. UcCanless, 307 U.S.
357, 365-366 (1939).
In deciding the question of residence for inheritance tax
purposes, a court would take into eccount the circumstances you
p. 2743
Eonorable Al Lune - Page lb (JM-611)
describe: however, the single fact that a person registers to vote in
Texas does not resolve this 1nqulry.s
It should be noted that finding a decedent was domiciled in Texas
at the tlma of his death for inheritance tax purposes does not
preclude another state from concluding the decedent was domiciled in
that state for purposes of its inheritance tax. See, e.g., Texas v.
Florida, 306 U.S. 398 (1939). lhe primary conetitutional restraint on
such multiple taxation arises when the total of the taxes charged by
the competing states exceeds the value of the entire estate. See
Massachusetts v. Hiseourf, 308 U.S. 1 (1939). In the event multi5
state claims of domicile are made, the comptroller of public accounts
is authorized to enter into a written compromise agreement on domicile
with the taxing authority of the other state and the personal
representative of the decedent's estate. Tax Code 6211.109(a).
Your fifth question is whether a person who registers to vote in
Texas establishes a residence for the purposes of Texas family and
marital property laws.
Section 4.01 of the Family Code specifically provides that the
"law of this state applies to persons married elsewhere who are
domiciled in this state," Section 3.21 of the Family Code, however,
establishes residency qualifications which determine whether a person
may maintain a suit for divorce in Texas courts:
No suit for divorce may be maintained unless at
the time the suit Is filed the petitioner or the
respondent has been a domiciliary of this state
for the preceding six-month period and a resident
of the county in which the suit is filed for the
preceding ninety-day period.
A nonresident may sue for divorce in a Texas court if the respondent
has been domidiled in Texas for at least the last six months prior to
2. Compare Estate of Paquette, T.C. Memo. 1983-571, 46 T.C.M.
(CCE) 1400 (1983) (decedent held to be nonresident of U.S. at time of
death for federal -estate tax purposes despite fact that he owned a
home in Florida and wintered there for 25 years; decedent's numerous
contacts with Canada, where he filed income tax returns, maintained
valid Canadian driver's license and passport, voted, and purchased,
registered and insured his automobile supported court's finding that
decedent was domiciled in Canada; court also considered decedent's
formal declaration of Canadian domicile and fact that the bulk of his
assets were situated in Canada).
p. 2744
:.
Eonorable Al Luna - Page 15 W-611)
the time the suit is filed. Pam. Code 53.24. Thus, the mere fact
that a person is regietered to vote in Texas does not in itself
determine whether that person may sue or be sued for divorce in this
state, since the Election Code does not require a person to be
domiciled in Texas for a particular period of tfme prior to becoming
eligible to vote. Assuming that a suit for divorce may properly be
maintained, property in the possession of either spouse during or on
dleeolution of the marriage is presumed to be community property and
is subject to division in a manner that the court deems "just and
right.,, Fam. Code 013.63; 5.02.
SUUHARY
A person who knowingly makes a false entry on
a voter registration application commits an offense
under section 37.10 of the Penal Code. A person
who is unqualified to vote commits an offense by
voting or attempting to vote in an election in
which the person knows he Is ineligible to vote.
Elec. Code 564.012(a)(l). A person who requests,
commands, or attempts to induce a person un-
qualified to vote to make a false statement on a
voter registration application commits an offense
under section 13.007 of the Election Code. Whether
persons who spend the winter in Texas but accept
the benefits of residence in other states and
intend to return to those states are residents of
Texas for voting purposes must be determined on a
case-by-case basis. Sections 13.074 to 13.080 of
the Election Code provide the exclusive procedure
for challenging a voter applicant's qualifications.
The Certificate of Title Act, article 6687-1.
V.T.C.S.. requires every person who seeks to sell,
transfer, or encumber any motor vehicle in this
state to obtain a certificate of title and to have
the vehicle inspected for compliance with safety
standards prior to any such transaction, regardless
of whether the owner is a Texas resident or a non-
resident. Article 670ld, V.T.C.S., additionally
requires every motor vehicle registered in this
state to undergo an annual safety inspection. All
Texas residents who operate motor vehicles on Texas
highways are required to obtain a valid Texas
driver's license. V.T.C.S. art. 6687b. The single
fact that a person registers to vote in Texas does
not determine whether the person must satisfy any
of these requirements.
p. 2745
Honorable Al Luna - Page 16 (J&611)
The fact that a person registers to vote in
Texas does not reveal whether the parson is subject
of Texas probate, inharitancc tax. family and
marital property laws, or to what extent such laws
may be applicable.
/JYqJ&&&
Attorney General of Texas
JACK HIGFlTOURR
First Assistant Attorney Gancral
MARYRELLRR
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committta
Prepared by Rick Gilpin
Assistant Attorney General
p. 2746