Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
September 17, 1990
Mr. A. W. Pogue Opinion No. JM-1223
Commissioner
State Board of Insurance Re: Definition of "residentl'
1110 San Jacinto for purposes of article 21.28-D
Austin, Texas 78701-1998 of the Texas Insurance Code
(RQ-2007)
Dear Commissioner Pogue:
Your questions, as set out in the brief accompanying
your request letter, are:
1. For purposes of the Life, Accident, Health
and Hospital Service Insurance Guaranty
Association Act, TEX. INS. CODE ANN. art.
21.28-D, what does the term 'resident'
mean?
2. For purposes of the Life, Accident, Health
and Hospital Service Insurance Guaranty
Association Act, TEX. INS. CODE ANN. art.
21:28-D (Vernon 1981 and Vernon SUPP.
1990), must a resident be a legal resident
of Texas to qualify for benefits?
Insurance Code article 21.28-D creates and provides for
the operation of the Life, Accident, Health, and Hospital
Service Insurance Guaranty Association (the l*association*t)
for the purpose of protecting policyholders, insureds,
beneficiaries, payees and assignees of certain kinds of
insurance policies, annuity contracts, etc., "against
failure in the performance of contractual obligation due to
the impairment of the insurer." Ins. Code art. 21.28-D,
§ 2. Association funding is provided through assessments of
"member insurers" -- those insurance companies to which the
act applies that are authorized to transact business in the
state. Id. §§ 5 (definitions), 9 (assessments). The
protection afforded by the association to those persons
covered by it includes guaranteeing, assuming, or reinsuring
policies of insolvent insurers covered by the act and
p. 6476
Mr. A. W. Pogue - Page 2 (JM-1223)
making, or causing to be made, payment of contractual
obligations of such insurers. Id, 5 8.
Section 3 of article 21.28-D, in subsection (l)(b),
provides that, with respect to the policies and contracts
covered under subsection (l)(a), the act applies as follows:
(i) to those persons who, regardless of
where they reside, except for nonresident
certificate holders under group policies or
contracts, are the beneficiaries, assignees,
or payees of the persons covered under
Paragraph (ii) or (iii); and
(ii) to those persons who are owners of
or certificate holders under those policies
or contracts and who are residents of this
state at the time such insurer becomes an
impaired insurer as defined in this Act; or
(iii) to those persons who are not
residents of this state at that time but who
meet all of the following conditions:
(A) the policies or contracts are issued
by insurers domiciled in this state;
(B) at the time the policies or contracts
were issued, the persons were residents. of
this State;
(C) the insurers did not hold a license
or certificate of authority in the states in
which the persons reside at the time a
delinquency proceeding as defined by Article
21.28 of this code is commenced against those
insurers;
(D) the other states have associations
similar to the association created by this
Act: and
(E) the persons are not eligible for
coverage by those associations in the other
state. (Emphases added.)
Subsection (l)(b) distinguishes, in subparts (ii) and
(iii) between two classes of persons covered by the act:
those who were residents of this state at the time the
p. 6477
Mr. A. W. Pogue - Page 3 (JM-1223)
insurer became an impaired insurer,1 and those who were not
residents at such time but resided in Texas when the policy
or contract was issued. Persons in the latter class are
covered only if certain other criteria are met.
You note that article 21.28-D does not define the term
"resident" as it is used in the article. You ask us in your
first question, in effect, to provide such a statutory
definitiona
We think that article 21.28-D provides ample authority
for the association, the commissioner, and the State Board
of Insurance to promulgate rules establishing the scope of
the terms "reside" and "residence,11 as used in article
21.28-D, for purposes of carrying out its duties under the
article. See Ins. Code art. 21.28-D, 55 lo(l)(a), lO(3) (0
(association shall promulgate "plan of operation," subject
to approval of the commissioner, containing provisions
"necessary or proper for the execution of the powers and
duties of the association'), 10(l)(b) (if association does
not submit suitable plan of operation, commissioner may
adopt rules "necessary or advisable" to effectuate
provisions of act), 20 ("State Board of Insurance is
authorized and directed to issue such reasonable rules and
regulations as may be necessary to carry out the various
purposes and provisions of this Act, and in augmentation
thereof"): see. e.q., 37 T.A.C. 5 15.1(2), (3) (Department
of Public Safety rule defining "resident" as "person whose
domicile is in the State of Texas" for purposes of driver's
license requirements of V.T.C.S. article 6687b).
It is not the function of this office, under the con-
stitutional and statutory provisions governing the opinion
process, to write the law or to promulgate rules for an
agency's administration of the laws it is charged to carry
out. Adopting legislation is a matter for the legislature.
Where the legislature has properly delegated to an admini-
strative agency the quasi-legislative power to adopt rules
1. &g Ins. Code art. 21.28-D, 5 5(8), defining "im-
paired insurer."
2. You request letter, on page 1, characterizes your
request as for "an opinion which setsout the definition of
'resident' for the purpose of TEX. INS. CODE ANN. art.
21.28-D."
p. 6478
Mr. A. W. Pogue - Page 4 (JM-1223)
?
for the administration of the law the agency is charged to
carry out, promulgation of those rules, within the
parameters of applicable law, is properly a matter for that
agency. We cannot provide a comprehensive definition of
Vesidence" which will apply in all possible situations that
may arise. Nevertheless, we offer the following discussion
to assist you in carrying out the purposes of article
21.28-D.
You note in your brief, citing Prince v. Inman, 280
S.W.2d 779 (Tex. Civ. App. - Beaumont 1955, no writ) and
DeLeon v. Harlinaen Consol. Indev. School Dist., 552 S.W.2d
922 (Tex. Civ. App. - Corpus Christi 1977, no writ), that
the definition of the term "residence" varies depending on
the context of its usage and that its meaning in a
particular statutory context depends on the legislative
purpose behind the statute.
You point out that several authorities have distin-
guished between the terms Vesidence" and "domicile,"
indicating that "residence" means that a person is present
and "living" in a particular locality, while UVdomicile"
includes the additional element of intent to make that
location a "fixed" and "permanentl@ home. See Snvder v.
Pitts, 241 S.W.2d 136 (Tex. 1951)3; Skubal v. Skubal, 584
S.W.2d 45 (Tex. Civ. App. - San Antonio 1979, writ dism'd)
(and authorities cited therein). In construing the meaning
of the words "permanent residence" in an insurance policy,
the court in Switzerland Gen. Ins. Co. v. Gulf Ins. Co., 2ii
S.W.2d 161 (Tex. Civ. ADD. - Dallas 1948. writ dism'd)
stated that a person "may&have as many residences as he may'
choose, but can have but one domicile."
Nevertheless, it appears that where the legislature has
defined 'Oresidence,V@it has generally equated the term with
domicile. The Election Code defines "residence," for
purposes of that code, to mean "domicile, that is, one's
3. Interestingly, the court in Snvder, s!4Ix2, held
that since the purpose of the venue provision under consid-
eration in that case was only to prevent inconvenience to
parties not regularly present in the county where suit was
brought, the term "domicile," as used in the provision,
meant only lVresidence" -- in-.e.,requirement of the element
of intent to make the locan a permanent home was not
necessary to serve the purpose of the statute.
-.,
p. 6479
Mr. A. W. Pogue - Page 5 (JM-1223)
home and fixed place of habitation to which he intends to
return after any temporary absence." Elec. Code 5 1.015.
In defining l'residencellfor purposes of provisions dealing
with the interception and use of certain communications,
article 18.20, section 1(13), of the Code of Criminal
Procedure, though not using the term "domicile,*' uses
language substantially equivalent to that in the Election
Code definition. Education Code section 54.052 also defines
residence, for purposes of determining tuition rates at
institutions of higher education, as domicile. We note that
the Arizona Supreme Court in St. Joseoh's Hosv. & Medical
Center v. Maricova County 688 P.2d 986, 991 (Ariz. 1984)
stated that, though the te&ns residence and domicile are not
synonymous at common law, that jurisdiction at least had
"generally treated the statutory usage of the term
'residence' as carrying the same connotations as the term
'domicile.'" See also 37 T.A.C. 5 15.1(Z), (3) (the
Department of Public Safety rule equating residence with
domicile for purposes of driver's license requirements);
Attorney General Opinion JM-1212 (1990) (discussion of the
meaning of the term Vesidence" in provisions of Government
Code section 496.054 regarding prisoner work program
facilities).
Using a definition of "resident" for purposes of
article 21.28-D which would permit a person, in the words of
the Switzerland Gen. Ins. Co. opinion, referenced above, to
"have as many residences as he may choose" would, we think,
clearly lead to untenable results. Section 3 in subsection
(l)(b)(ii) provides that an owner or certificate holder of a
covered policy is covered if he is a resident at the time
the insurer becomes impaired. See also id. § 3(2)(d). We
do not think that the Texas legislature or that of any other
state having adopted similar provisions would have intended
that a person could have **residences11in all of such states
for purposes of the provisions. We think that the scheme of
article 21.28-D, and particularly of section 3, contemplates
that a person may not be considered to be a Vesident@' of
more than one state at a time for purposes of the article.
You suggest in your brief that in light of the provi-
sion of section 4 of article 21.28-D that it "shall be
liberally construed to effect" its purposes, the term "resi-
dent" as used in the article should be read to bear "its
simplest meaning: a person living and physically present
within the borders of the State of Texas." We are unsure of
the import you attach to the requirement of "physical
presence" in your definition. We do not think that any
definition of "residence" for purposes of article 21.28-D,
P
p. 6480
Mr. A. W. Pogue - Page 6 (JM-1223)
7
whether equating the term with domicile or otherwise, could
require uninterrupted physical presence. See. e .o Elec.
Code 5 1.015 (language regarding 'temporary absence"'in the
code's definition of 'residencen as ndomicile,'l quoted
above). As a brief submitted in connection with your
request by an insurance company points out, taken literally,
the definition of Vesident" you proffer would exclude a
person domiciled in Texas but travelling out of state on the
relevant date from the protection of the article, a result
which we cannot imagine the legislature would have intended
and which, moreover, would probably unconstitutionally
restrict the fundamental right of interstate travel. See.
e.s., ShaDiro v. ThOmosOn, 394 U.S. 618 (1969).
We note that the insurance company's brief offers a
definition of "residence" quoted from Snvder, suora:
1. A fixed place of abode within the
possession [fee or leasehold estate] of the
[person claiming residence]
2. occupied or intended to be occupied
consistently over a substantial period of
time
3. which is permanent rather than tempo-
rary.
See Snvder at 140 (parenthetical language added by briefer).
While we do not quibble with the Snvder court's
definition, which was in fact of the term V*domicile*'as used
in a venue provision, we do not agree with the suggestion in
the parenthetical language, added in the insurance company's
brief to the quoted Snvder definition, that a resident must
have a possessory interest in the claimed residence
tantamount to a "fee or leasehold estate." We find nothing
in the language of article 21.28-D or in the legislative
history which suggests that the legislature intended to
impose such a requirement on persons who might be entitled
to protection under the article. Nor do we see how such a
requirement would serve the purposes of the article. While
evidence that a person rented or owned a home at relevant
times under the article might be usefully considered in
making findings as to whether the person was a resident at
such times, such factors should not in themselves be taken
as conclusive on that issue. See. e.o Pitts v. Bl ack, 608
F. Supp. 696 (DCNY 1984) (homeless may ciaim as residence for
voting purposes "home base" to which they regularly return,
?
p. 6481
Mr. A. W. Pogue - Page 7 (JM-1223)
,-
us.. a public park or shelter): Cramer Graham, 264
S.W.2d 135 (Tex. Civ. App. - San Antonio I,;;, writ ref'd)
(persons were residents for voting purposes though they "oc-
cupied habitations consisting of trailer houses, walled-up
tents, cabins and shacks . . . on public property").
We note finally in regard to your first question that
we agree with the argument in your brief that whether a
person holds a Texas driver's license is in itself an
inadequate indicator of whether that person is a "resident"
for purposes of article 21.28-D. Subsections (d) through
(0 of section 3 of article 668713, V.T.C.S., exempts
"non-residents" from the requirement of obtaining a Texas
driver's license. As noted above, the Department of Public
Safety, by rule, defines "resident" for purposes of article
6687b as a "person whose domicile is in the State of Texas."
37 T.A.C. § 15.1(2). But whether a person obtains-or fails
to obtain a driver's license under article 66871, is, we
think, simply an unreliable indicator in itself of whether
he is in fact a "resident :I for purposes of article 21.28-D.
The person might have claimed Texas residence and obtained a
driver's license under article 6687b though he was not in
fact a resident, or he might have failed, through inadver-
/-‘ tence or otherwise, to obtain a license though he was in
fact a resident and thus required as a driver under that
article to obtain a license.
The same may be said with regard to, for example,
whether and where the person in question is a registered
voter, whether he has registered his automobile in this
state or elsewhere, or whether in other contexts such as
court proceedings, he has indicated Texas or another place
as his residence. Factual evidence in regard to the above
matters may assist the association -- should a full factual
investigation as to the issue of residence be called for in
a particular case -- in making its determination. But none
of these factors should in itself be taken as conclusive on
the issue of "residence" for purposes of article 21.28-D.
See Attorney General Opinion JM-611 (1986) (residence of
persons who winter in Texas for purposes of voting, vehicle
registration, etc.).
We turn now to your second question: whether a person
must be a "legal" resident of Texas -- that is, a United
States citizen or an alien legally residing in this country
under federal immigration laws -- in order to be a Texas
resident for purposes of article 21.28-D. You conclude in
your brief that he need not be, and that therefore it is not
P. 6482
Mr. A. W. Pogue - Page 8 (JM-1223)
necessary for the association to determine the citizenship
or immigration status of a person for purposes of deter-
mining his "residence" under the article. We agree.
We think it is well established that a provision of
state law requiring residence does not preclude an alien,
whose presence in the state is otherwise of a residential
character, from receiving benefits under the provision, even
though the person may not have the legal right, under
federal immigration laws, to be in this country. See
Attorney General Opinions JM-1021 (1989) (resident illegal
aliens not excluded from coverage under Indigent Health Care
and Treatment Act): JM-962 (1988) (Texas Commission for the
Blind may not deny services to visually handicapped children
or vocational rehabilitation services to adults because of
immigration status); see also St. Joseoh's HOSD. & Medical
Center v. MaricoDa County, suora (undocumented aliens may
gualify as countv residents under statutes mandatina that
county-reimburse- private hospital for emergency care to
indigents); Commercial Standard Fire & Marine Co. v.
Galindo, 484 S.W.2d 635 (Tex. Civ. App - El Paso 1972, writ
ref'd n.r.e.) (person residing in this state whose entry may
be contrary to the immigration laws is not barred, by that
reason alone, from receiving workers compensation benefits).
We find no indication in the residence requirements of
article 21.28-D or in the legislative history of those
provisions that the legislature intended citizenship or
legal immigration status to be prerequisites to "residence"
for purposes 'of those provisions. Whether it could have
constitutionally imposed such requirements had it wished to
do so is, moreover, highly questionable. See e,lvler v. Doe,
457 U.S. 202 (1982) (Texas statute withholding funds for
public education of children not "legally admitted" into the
United States violates equal protection clause of U.S.
Constitution).
SUMMARY
The Life, Accident, Health, and Hospital
Service Insurance Guaranty Association, in
its "plan of operation," or the commissioner
or State Board of Insurance, by rule, have
authority to define, within legal parameters,
the terms "reside" and Vesident@@ as they are
used in Insurance Code article 21.28-D.
The provisions Of section 3 of that
article requiring that certain persons have
v. 6483
,
.
Mr. A. W. Pogue - Page 9 (JM-1223)
been residents of Texas at relevant dates
under the article in order to be entitled to
protection under the article do not require
that those persons have at such times been
United States citizens or aliens legally
residing in the United States under federal
immigration laws.
J *a
Very truly y s,
M,
JIM MATTOX
Attorney General of Texas
NARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
P
RKNEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 6484