Untitled Texas Attorney General Opinion

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

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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

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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."

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Mr. A. W. Pogue - Page 4 (JM-1223)

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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.

-.,

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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

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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,

?

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Mr. A. W. Pogue - Page 7 (JM-1223)

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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

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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

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,

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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

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