Texas Attorney General Opinion: H-559 Page: 4 of 6
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The Honorable F. H. McDowell page 4 (H-559)
situations in which a presumption of nonresidence might not be true
in fact. Federal prisoners, for example, may be permitted some
choice of the particular prison facility in which they will be incarcerated.
Id. , at 1119. Furthermore, "the establishment of an apparently permanent
residence in the state of imprisonment by the prisoner's immediate
family" would constitute some evidence of his intent to remain there.
Id., at 1128 (concurring opinion). Although a prisoner's physical compul-
sion is an important factor in determining domicile, and although the
prisoner has the burden of proving the requisite intent, we cannot conclude
that he may never demonstrate this intent as a matter of law.
It is well settled that, where possible, a statute should be construed
so as to avoid constitutional conflict. State v. City of Austin, 331 S. W. 2d
737 (Tex. Sup. 1960); Southern Pine Ltimber Co. v. Newton County Water
Supply District, 325 S. W. 2d 724 (Tex. Civ. App. --Beaumont 1959,
writ ref'd, n. r. e.). Since we believe that an irrebuttable presumption
of nonresidence would raise the "spectre of unconstitutionality, " we
interpret section 54. 052, and the various court decisions which have
considered the question of a prisoner's domicile, to create a rebuttable
presumption that a person retains his preincarceration domicile. The
presumption may be overcome only by a sufficient demonstration of the
prisoner's intent to remain in Texas after his release.
Exceptions to the domicile test in determining residency for
purposes of college tuition are specified in other portions of section
54 of the Education Code. One of these, the exception for "military
personnel, " section 54. 058, is necessarily inapplicable to prisoners.
Others, such as the exception for "dependents of military personnel"
stationed in Texas, section 54. 058, the exception for the spouse and
children of an employee of an "institution of higher education, " section
54. 059 and the exception for the spouse of a "resident of Texas,
classified as such under this chapter at the time of marriage and at the
time the nonresident registers, " section 54. 056, would seem to be
available to few, if any, prisoners.
Under the terms of section 54.052(d), a person "who has come
from outside Texas" may be classified as a "resident student" withoutp. 2518
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Texas. Attorney-General's Office. Texas Attorney General Opinion: H-559, text, March 20, 1975; (https://texashistory.unt.edu/ark:/67531/metapth271083/m1/4/?rotate=270: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.