Could a Texas state-school employee living on the facility's campus qualify as a resident candidate for the surrounding school board?

Texas AG Opinion JM-231: School Trustee Residency

Plain-English summary

A state-school employee lived on the campus of a Texas Youth Commission facility located entirely within an independent school district and sought election to that district's board of trustees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

JM-231 concluded that the employee met the Election Code residency requirement under the facts presented and could appear on the ballot. It said a state employee could not "conclusively be presumed to be a nonresident" merely because the employee lived in a state enclave. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

The opinion did not make campus residence automatically sufficient. It said residency was "a question of intent and factual circumstances" and that those factual questions were not for the Attorney General or the official receiving the application to determine. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

JM-231 concluded that the Election Code could not disenfranchise a state employee living inside the district "merely because his place of residence is located on a public enclave." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Because it answered the candidate-residency question favorably, the opinion did not separately answer the conditional questions about voting eligibility and constitutional injury. It said those questions were "predicated on a negative answer" and therefore did not need to be addressed. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did living on a state-school campus automatically make the employee a nonresident of the surrounding district?

No. JM-231 said a state employee could not "conclusively be presumed to be a nonresident" because of residence in a state enclave. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Could the employee's name appear on the school-board ballot?

Yes under the facts presented. The opinion concluded that the applicant met article 1.05 and that "his name may appear on the ballot" for the trustee position. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

What did residence mean under the Election Code discussed in JM-231?

The opinion quoted residence as "domicile," meaning a home and fixed place of habitation to which the person intended to return after a temporary absence. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Who decided disputed facts about the candidate's actual residence?

JM-231 said the issue depended on intent and facts and was "not within the authority of this office nor within the discretion of the official receiving the application" to decide. It cited judicial determination as the route for the residence question. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Did JM-231 separately decide the employee's voting and equal-protection questions?

No. The opinion said it was unnecessary to address them after answering the ballot-residency question in the employee's favor. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Background and statutory framework

Article 1.05 required a candidate for a local public office to have lived in the relevant political subdivision for six months before the applicable date. Brown v. Patterson had treated a school district as a "district or political subdivision" for that provision. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Article 5.08(i) addressed government employees' residence. It preserved the earlier home unless the employee had "become a bona fide resident of the place where he is in government service." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

JM-231 relied on Carrington v. Rash and Evans v. Cornman to reject a conclusive nonresidency rule based on residence in a government enclave. It quoted Evans as describing enclave residents as "just as interested in and connected with electoral decisions" as nearby residents outside the enclave. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Citations and references

• Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ), supported treating a school district as a "district or political subdivision" under article 1.05. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf
• Parker v. Brown, 425 S.W.2d 379, 381 (Tex. Civ. App. - Tyler 1968, no writ), and Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964), appeared in the discussion of residence as a factual issue. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf
• Carrington v. Rash, 380 U.S. 89 (1965), rejected a conclusive presumption against military personnel acquiring voting residence while allowing a bona fide residence requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf
• Evans v. Cornman, 398 U.S. 419 (1970), addressed voting residence for people living on a federal enclave within Maryland. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf
• Chapa v. Whittle, 536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976, no writ), appeared for strict construction of restrictions on eligibility for public office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0231
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0231.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

November 14, 1984

Honorable Ray Farabee
Chairman
State Affairs Committee
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711

Opinion No. JM-231

Re: Whether an employee resident of a state school is a legal resident of the surrounding independent school district

Dear Senator Farabee:

You have informed us that an employee residing on the campus of a state school seeks election to the board of trustees of the independent school district in which the state school is located. The state school is a state correctional facility for delinquent children administered by the Texas Youth Commission pursuant to chapter 61 of the Human Resources Code. The state school is not an independent school district having geographical boundaries; it is a state-created and state-administered facility having no elected board of trustees. All employee residents of the state school are employees of the state of Texas. The geographical boundaries of the independent school district completely enclose the state school. The employee in question has resided on the campus of the state school for more than six months, has voted in previous independent school district elections, and has children attending the independent school district's schools.

You ask us the following questions:

1. Under the facts as outlined above, does the applicant for a place on the district ballot meet the residency requirements of article 1.05 of the Election Code for a "district or political subdivision," so that he may appear on the ballot as a candidate for the board of trustees of the independent school district?

2. If the applicant does not satisfy the requirements of article 1.05 of the Election Code, is he still qualified to vote in the elections of the independent school district pursuant to article VI, section 2 of the Texas Constitution?

3. If the applicant is not permitted to be a candidate or to vote in the independent school district elections by virtue of his status as a state employee residing on the campus of a state facility, does this prohibition constitute a denial of equal protection or a deprivation of liberty under the Fourteenth Amendment of the United States Constitution?

We conclude, first, that the state employee applicant does meet the residency requirement of article 1.05 of the Election Code, and that his name may appear on the ballot as a candidate for a position on the board of trustees of the independent school district. A state employee cannot conclusively be presumed to be a nonresident of a political subdivision by virtue of his status as a state employee residing in a state enclave.

Article 1.05, V.T.C.S., of the Election Code provides in part as follows:

Subdivision 1. No person shall be eligible to be a candidate for, or to be elected or appointed to, any public elective office in this state unless he is a citizen of the United States eligible to hold such office under the Constitution and laws of this state . . . and unless he will have resided in this state for a period of 12 months next preceding the applicable date specified below, and for any public office which is less than statewide, shall have resided for six months next preceding such date in the district, county, precinct, municipality, or other political subdivision for which the office is to be filled. (Emphasis added).

The residency requirement for any candidate for any public elective office in Texas is 12 months in the state preceding the last day his name may be placed on the ballot and 6 months in the state preceding such date in the district or political subdivision. The Court of Civil Appeals has held that a school district was a "district or political subdivision" within the meaning of article 1.05 of the Election Code. See Brown v. Patterson, 609 S.W.2d 287 (Tex. Civ. App. - Dallas 1980, no writ). You indicate that the applicant, as an employee of the state, has resided on the campus of the state school for more than six months.

What constitutes "residence" is defined in article 5.08.(a) of the Election Code: "domicile; i.e., one's home and fixed place of habitation to which he intends to return after any temporary absence." The Election Code does not define "residence" for the purpose of running for public office, but the term has been construed to mean the same for the purposes of voting as for the purposes of running for political office. Cf. Prince v. Inman, 280 S.W.2d 779 (Tex. Civ. App. - Beaumont 1955, no writ). For the purpose of voting, article 5.08.(i) states that

[t]he residence of one who is an officer or employee of the government of this state or of the United States shall be construed to be where his home was before . . . unless he has become a bona fide resident of the place where he is in government service. . . .

Determining the question of residency is a question of intent and factual circumstances. It is not within the authority of this office nor within the discretion of the official receiving the application to determine those factual questions. See Parker v. Brown, 425 S.W.2d 379, 381 (Tex. Civ. App. - Tyler 1968, no writ) (question of residence is to be judicially determined); see also Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964) (residence is determined by factual circumstances).

In any event, article 5.08 when read with article 1.05 cannot operate to disenfranchise a state employee who lives within the geographical boundaries of the independent school district merely because his place of residence is located on a public enclave. The right to vote and to run for a political office are basic fundamental rights guaranteed by the First Amendment to the United States Constitution. Dunn v. Blumstein, 405 U.S. 330 (1972); Evans v. Cornman, 398 U.S. 419 (1970); Carrington v. Rash, 380 U.S. 89 (1965). Any statutory provisions which restrict the right to hold public office should be construed strictly against ineligibility. See Chapa v. Whittle, 536 S.W.2d 681, 683 (Tex. Civ. App. - Corpus Christi 1976, no writ).

The factual situation as presented is governed by the principles of Carrington v. Rash, supra, and Evans v. Cornman, supra. In Carrington, the United States Supreme Court held that article VI, section 2 of the Texas Constitution was violative of the equal protection clause of the Fourteenth Amendment because the provision established a conclusive presumption against servicemen from acquiring residency for voting purposes. However, the Court did conclude that "Texas ha[d] a right to require that all military personnel enrolled to vote be bona fide residents of the community." 380 U.S. at 93-94. At that time the state of Texas provided no means by which a soldier could establish a bona fide residency in the county where he was stationed.

Similarly, in Evans v. Cornman, 398 U.S. 419 (1970), the United States Supreme Court considered the issue of whether persons living on a federal enclave could acquire residency for voting purposes. In Evans, the Permanent Board of Registry of Montgomery County, Maryland, ruled that persons living on the grounds of the National Institutes of Health, a federal enclave located within the geographical boundaries of the state, did not meet the residency requirement of the Maryland Constitution. Accordingly, NIH residents were denied the right to vote in Maryland elections. The Court in striking down the provision of the Maryland Constitution as violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution, held that the state could assert no overriding interest to restrict the right to NIH enclave residents; and, that NIH residents were residents of Maryland and were "just as interested in and connected with electoral decisions . . . as [are] their neighbors who lived off the enclave." Id. at 426.

We conclude that Carrington and Evans prohibit election officials from applying article 1.05 to circumscribe the right of a state employee to acquire residency to run for public office by virtue of the fact that he resides on a state enclave, particularly, as here, when the state enclave is located within the geographical boundaries of the political subdivision in which he seeks office. The purpose of article 1.05 is to provide better representation by assuring that the voter will be better acquainted with the qualifications and views of the candidate and the candidate will be acquainted with and responsive to the needs and desires of the voter. See Brown v. Patterson, supra. By construing article 1.05 in favor of the residency of the applicant, the statutory purpose will not be frustrated.

Since your second and third questions are predicated on a negative answer to your first question, it is not necessary to address them.

SUMMARY

Article 1.05 of the Election Code does not bar a state employee from establishing residency within an independent school district by virtue of the fact that he resides on a state facility located within the geographic boundaries of the independent school district. The applicant, having met the residency requirement may obtain a place on the ballot for the position of trustee of the independent school district.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood