Untitled Texas Attorney General Opinion ( 1952 )

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~~EATTORNEY GENERAL
PRICE DANIEL
ATTORNEY
GENl!RAL
February 12, 1952
Hon. Hen*+ Taploar Jr. Opinion No. V-1405,
Catznty Attorney
Be11 C,ounty Re: Applicability of the motor
Belton, Texas vehicle use tax levied by
Section 2(b), Article 7047k,
V.C.S., to soldi,ers stationed
at Fort Hood who apply far
Dean Mr, Taytcw: Texas certificates of title.
You s&it for the opinion of this office the question
d the application of the use tax on motor vehicles levied by’sub-
auction (b) of Section 2 of SECTION VII of House Bill 285, Acts
52nd Leg,, R-S, 1951, ch. 402, p, 695 (Sec. 2,(b), Art. 7047k, V.C.
S.), to soldiers stationed at Fort Hood in your county. This pi-
&imed &be statute provides:
YWhen 4 perspn inakes ,epplication,for the ini-
tWI ceztikate d title in this St&e on a patticular
motor vehicle, he shall pay a use tax on that motor
vehtcle in the sum of Fifteen Dollars ($15). No cer-
tificate of title a+ mot& vehidle registration for such
mstor vehicle shall’be issued until the u&tax im-
posed by this subsection has been paid. However, a
person is not liable for the tax imposed by this sub-
section if the sales or use tax imposed by any other
provision of this Act has been previously paid upon
such motor veh&cle. It,is the purpose of this subsec-
tiop td’impose a use tax upon motor vehicl@s brought
Snto this State by new residents of this State.”
The tax imposed by this statute is upon “motor vehi-
cles brought into this State by new residents of this State.” Un-
less a sol&ier is a new resident of this State within the purview of
the statute, it is clear that the tax does not apply to him. The
Legislature did not define what it meant by a resident ti new
resident, In Houston Printing Co. v. Tennant, 120 Tex. 539, 39
S.W.Zd 1089 (1931), the Court, in discussing the subject, stated:
“Webster’s New International Dictionary defines
the word ‘reside’ as follows: ‘To dwell permanently
or for a considerable time; to have a settled abode for
a time; to have one’s residence or domicile.’
Hon. Henry TaylorJr,, Page 2,(V-1405)
“It has never been the policy of the courts of
this state to give a strict technical construction to
the words ‘inhabitant,’ ,‘resident,’ ‘domicile,’ and
’ ‘residence.’ It f6 well settled by the decisions of
@ii6 state that the words ‘inhabitant’ and ‘resident’
aud ‘domicile’ and ‘residence’ are interchangeable
term6 , . ,”
In the absence of any intention to effect a change of
domicile or re6ldence, the domicile of a person in the military
service is in a0 way affected or changed by reason of his entry
iato the service. A person $n the military service dao not lose
or abandon the domicile which he had when he entered~the serv-
ice, nor does he acquiie & new orie at the place ere he serves,
regardle’ss of th,e duration of his service at such“f”place. :In Gal-
lagher 0. Gallagher,, 214 S,W, 516 (Tex.~Ctv., App, 1919), the-
%ttFt 6tatedf
“Ordinarily, it is a presumption of law that
where a person actually lives is his~,domicile, such
presumption of oourse being rebuttablei but no such
presumption could arise in the case of a soldier in
actfve service, who has no choice of domicile, but
must ordinarily cling to his domicile of origin. Or-
dinarily, an act of removal to a certain location,
coupled #itb the intent to make a permanent resi-
dence there, might be sufficient to fix a domicile,,
but that is because the removal is voluntarily made,
which could not occur in the case of a soldier in ac-
tive service. It follows that the removal of the lat-
ter to a place and his residence there for years would
not offer any probative evidence to corroborate evi-
dence as to an intention to make the place his home,
3,
. i .
The cases as will be noted go so far as ‘to hold with
respect to the domicile of persons in the military service that
clear and positive pro@ is required to show a relinquishment of
residence or domicile in one state and the acquisition of a new
residence OF domicile in another. Mere physical presence in the
State of a person in the military service is not sufficient. Before
a person’in the military service can become a new resident of
;re=&yJ;;;;g ““F$ e ::
pbandop
. ,,, hjs residence in the state
e an in which he Lvvasa &s{dent at the time
of his entry into the service. Until this occurs, soldiers station-’
ed at Fort Hood located in your county are not sub~iect to this tax
for the obvioue rea6on that-they would not be “new-residents of
t4e Stab d Texas.”
Han,. Henry Taylor, 3r., Page 3 (V-1405)
Again, it is said in Wilson v, WSlron, 189 S*W,.&d 212
(Tex, Civ. App. 1945):
“A review of the law pertaining to the rest-
dence of a soldier who is aant to Taxal from anoth-
er state under military orders prepeuly begins with
the case of Gallagher v. Gallagher, Tex, Civ. App.,
214 SW. 516, 518. It is there held that the words
‘inhabitant, ’ ‘citizen’ and ‘resident’ mean Bubstan-
tially the same thing. In order to be an inhabitant
one must acquire a domicile or home, and It must
have the stamp of permanency on it, There must
not anly be an intention to establish a permanent
domliok1e o? home, but the intention must be accom-
pnnled by some act don& in the execution of the in-
tent. A soldier Can abandon his domicile of origin
an4 select another, ~yet, in order to show a: new dom-
icile during the term of enlistment; there must be
the clearest and most unequivocal proof. . . .”
In Commercial Credit Corp. v, Smith, 143 Tex. 612,
187 S.W.Zd 36m45), the Court quoted with approval the follow-
ing statement:
U ‘A soldier or sailor does not acquire a new
domicile merely ,from being atatfoned at a pwticu-
,’lar place in lfne ‘of duty. His domikile remains the
same as that which’he had when he entered the serv-
ice, unless he shows a change by proof of clear and
unequivocal intention,’ 15 Tex. Jur. 116. See also
Therwanger v. Therwanger, Tax. Civ, App, 1’75 S-W,
2d 704.” .
It is not to be inferred from what we have said above
that a soldier sent to Texas from another .atate under military or-
ders may not under any circumstances be&me a resident or a
new resident of this .State and hence subject to this tax. What we
do hold Is that this liability does not arise merely because he is
stationed in Texas, and this regardless of the length of his stay,
A soldier comlng from another state to Texas, even
thhugh under military ooders, may, if he choose, abandon his
domicile OP residence tn the state from which he came and ac-
quite a residence or new residence in the State of Texas. This
would depend upon a bona fide intention accompanied by poeitive
acts evidenciq ouch intention.
Hon. Henry Taylor, Jr., Page 4 (V-1405)
SUMMARY
A soldier who is a resident of another state
stationed in Texas under military orders is not a
new resident of Texas unless he abandons his resi-
dence in the state fr~om which.he is transferred and
in which he had his residence at the time of trans-
fer. His intention to become a resident or a new
resident of Texas must be accompanied by positive
acts and circumstances evidencing s,uch intention
before any such change is established. In the ab-
sence of these acts a soldier is not subject to the
‘*use tax upon motor vehicles brought into this State
by new residents of this State,“‘since he is not a
resident of Texas. Sec. 2(b) Art. 7047k, V;C.S.
Your’s very truly,
PRICE DAN&L
Attorney General
APPROVED: By L