Untitled Texas Attorney General Opinion

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