What counts as 'residency' to run for county attorney in Texas, intent or actually living there?

Plain-English summary

The Goliad County Auditor asked the Attorney General a focused question with no specific facts attached: when someone wants to run for county attorney, is "residence" measured by their intent or by where they actually live? The AG's answer was that the two go together.

Two constitutional and statutory pieces set the baseline. Article XVI, section 14 of the Texas Constitution requires district and county officers to reside within their districts or counties, and a person who fails to do so vacates the office. The Election Code adds that a candidate must have resided in the state for twelve months and in the territory from which the office is elected for six months before certain dates (section 141.001(a)(5)). A county attorney is a county officer (Texas Constitution article V, section 21), so the requirement applies.

The key is how the Election Code defines "residence." It means domicile, "one's home and fixed place of habitation to which one intends to return after any temporary absence" (section 1.015(a)), and a person does not lose residence by leaving for temporary purposes, nor gain it by coming somewhere for temporary purposes without intending to make it home (section 1.015(c)–(d)). So the definition already builds in intent. The statute also says residence is determined under the common-law rules announced by Texas courts (section 1.015(b)). The leading decision, Mills v. Bartlett, calls residence an "elastic" concept that depends on circumstances and "largely depends upon the present intention of the individual," and holds that neither bodily presence alone nor intention alone is enough; residence is fixed only "when the two coincide."

Putting it together, the AG concluded that residency for any candidate, including for county attorney, turns on both physical presence and current intent. Those are factual questions, and the AG said it is not the office's role to decide them; a court determines residency.

What this means for you

This describes what the opinion holds. It is the AG's 2021 reading; statutes and case law can change, so confirm current law before relying on it.

Prospective county attorney candidates

The opinion says residency is judged by both where you physically live and your present intent to remain there or return, measured against the Election Code's domicile definition and the twelve-month and six-month periods. It does not bless or reject any particular living arrangement.

County auditors and election officials

The opinion does not give a checklist that resolves a residency dispute. It frames residency as a fact question that combines presence and intent, and it states that the AG cannot make that factual determination; a court does.

Common questions

Q: Is residency for running for county attorney about intent or about actually living there?
A: Both, per the AG. The Election Code's domicile definition takes intent into account, but residence is fixed only when physical presence and current intent coincide.

Q: How long do I have to live in the county before running?
A: The opinion cites Election Code section 141.001(a)(5), which requires residing in the state for twelve months and in the territory from which the office is elected for six months before specified dates.

Q: Can the Attorney General decide whether a specific person qualifies?
A: No. The AG said determining a candidate's residency involves factual questions that are not within the office's authority and are to be judicially determined.

Q: What is the leading case on residency here?
A: Mills v. Bartlett, where the Texas Supreme Court described residence as elastic, dependent on circumstances and present intention, and fixed only when presence and intention coincide.

Background and statutory framework

The residency rule for county officers comes from Texas Constitution article XVI, section 14, with the county attorney's status as a county officer drawn from article V, section 21 and confirmed in Ryan v. Azios, which held the candidate residency requirement is not in conflict with article XVI, section 14. The Election Code supplies the durational requirement in section 141.001(a)(5) and the definition of "residence" in section 1.015, including the direction in subsection (b) to apply the common-law rules announced by Texas courts.

For those common-law rules, the AG relied on Mills v. Bartlett and its application in later cases including Woods v. Legg (voter residency), State v. Fischer (candidate residency), and Prince v. Inman, along with prior AG opinions JM-231 (1984) and GA-0141 (2004) recognizing that "residence" means the same for voting and for running for office and involves both physical presence and current intention. The AG cited Parker v. Brown for the point that the question of residence is to be judicially determined.

Citations and references

Statutes and constitution:

• Tex. Const. art. XVI, § 14; art. V, § 21 (officer residency; county attorney elected by county voters)
• Tex. Elec. Code § 1.015 (definition of residence) and § 141.001(a)(5) (durational residency)

Key cases:

• Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) (Texas Supreme Court; residence is fixed only when presence and intention coincide)
• Ryan v. Azios, 535 S.W.2d 50 (Tex. App.—San Antonio 1976) (candidate residency requirement not in conflict with article XVI, § 14)
• Woods v. Legg, 363 S.W.3d 710 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (applying Mills principles to residency)
• State v. Fischer, 769 S.W.2d 619 (Tex. App.—Corpus Christi 1989, writ dism'd w.o.j.) (residency for a candidate)
• Parker v. Brown, 425 S.W.2d 379 (Tex. App.—Tyler 1968, no writ) (residency is judicially determined)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0377
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0377.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 14, 2021

Mr. Rusty Friedrichs
Goliad County Auditor
Post Office Box 526
Goliad, Texas 77963

Opinion No. KP-0377

Re: Residency requirement to become a candidate for county attorney (RQ-0396-KP)

Dear Mr. Friedrichs:

You ask about the residency requirement for a person to become a candidate for county attorney.¹ You offer no specific facts but inquire whether "residence" for such purpose is based on either intent or actual residency. See Request Letter at 1.

Article XVI, section 14 of the Texas Constitution requires all district or county officers to reside "within their districts or counties." TEX. CONST. art. XVI, § 14. A person failing to comply with this requirement "shall vacate the office so held." Id. The Election Code provides that a candidate for a public office "must . . . have resided continuously in the state for 12 months and in the territory from which the office is elected for six months immediately preceding" one of several specified dates.² TEX. ELEC. CODE § 141.001(a)(5).

The Election Code defines "residence" to mean "domicile, that is, one's home and fixed place of habitation to which one intends to return after any temporary absence." Id. § 1.015(a). It further provides that a person does not lose his or her residence by leaving that home "to go to another place for temporary purposes only." Id. § 1.015(c). Conversely, "[a] person does not acquire residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person's home." Id. § 1.015(d). Thus, in defining "residence," the Election Code considers intent.

Further, the Election Code specifies that the determination of residence must accord with the "common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code." Id. § 1.015(b). In Mills v. Bartlett, the Texas Supreme Court announced principles applicable to determining a person's residence for purposes of the Election Code. See 377 S.W.2d 636, 637 (Tex. 1964). The Court described the concept of "residence" as one that is "elastic . . . and . . . extremely difficult to define." Id. The Court stated that the meaning of "residence"

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.

. . . Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined.

Id. Courts continue to use these principles to examine a person's residency for purposes of the Election Code. See, e.g., Woods v. Legg, 363 S.W.3d 710, 714–15 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Courts recognize that the question of a person's residency depends on "circumstances surrounding the person involved and largely depends upon the present intention of the individual." Id. at 714 (considering residency for a voter). The question "centers on both the person's expression of intent to remain at, or return to, the alleged residence, as well as the circumstances that led to their presence or absence and those tending to show that the person is likely to remain at or return to the alleged residence." Id.; see also State v. Fischer, 769 S.W.2d 619, 623–24 (Tex. App.—Corpus Christi 1989, writ dism'd w.o.j.) (considering residency for a candidate); Tex. Att'y Gen. Op. No. JM-231 (1984) at 2 (recognizing the Election Code's definition of "residence" has been construed to mean the same for the purposes of voting as for the purposes of running for political office) (citing Prince v. Inman, 280 S.W.2d 779 (Tex. App.—Beaumont 1955, no writ)). As this office previously recognized, "[u]nder current law, the determination regarding 'residence' thus involves both physical presence and current intention" of the person. Tex. Att'y Gen. Op. No. GA-0141 (2004) at 5.

In sum, determining the question of residency of any candidate for office, including that of county attorney, involves consideration of both intent and physical presence, which are factual circumstances. It is not within the authority of this office to determine those factual questions. See Parker v. Brown, 425 S.W.2d 379, 381 (Tex. App.—Tyler 1968, no writ) (explaining question of residence is to be judicially determined); Tex. Att'y Gen. Op. No. JM-231 (1984) at 3.

¹ See Letter from Mr. Rusty Friedrichs, Goliad Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 15, 2021) ("Request Letter").

² As a county officer, a county attorney must reside in the state and county for the requisite time period. See TEX. CONST. art. V, § 21 (providing that "[a] County Attorney . . . shall be elected by the qualified voters of each county . . . ."). See generally Ryan v. Azios, 535 S.W.2d 50, 53 (Tex. App.—San Antonio 1976, orig. proceeding [mand. denied]) (determining that residency requirement for candidate for county attorney was not in conflict with article XVI, § 14).

S U M M A R Y

Determining residency for purposes of the Election Code involves consideration of both a person's physical presence and current intention to reside in a particular location.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee