You ask three questions regarding voter eligibility and residency requirements for voting in Texas, particularly with respect to students enrolled in schools of higher education.

In your letter requesting an official opinion from this office, you state that your request is prompted by statements made by the Criminal District Attorney of Waller County, who you say has “declared that students at Prairie View A&M University may not meet residency requirements sufficient to vote in local elections.”¹ Citing Symm v. United States, 439 U.S. 1105 (1979), you note that the United States Supreme Court rejected an appeal by a former Waller County Tax Assessor-Collector, who was also the voter registrar, thus affirming the decision of a three-judge panel that enjoined the Tax Assessor-Collector from refusing to register college dormitory residents enrolled at Prairie View A&M University. The current Tax Assessor-Collector of Waller County, who is also the voter registrar, has publicly declared that she will seek guidance from and follow the directives of the Office of the Secretary of State, who is the state's chief election officer, on these matters, rather than rely on advice from the local prosecutor. See Terry Kliewer, Prairie View Voting Issue to be Appealed, Houston Chronicle, Dec. 24, 2003, at 19A. You ask for an opinion from this office about eligibility for voting in Texas, residency requirements for voter registration, and the authority of local prosecutors to prevent local voter registrars from registering voters.

You first ask: “What are the legal requirements to vote in an election in Texas?” Request Letter, supra note 1, at 2.

The Texas Constitution provides that every person who is both a citizen of the United States and a resident of Texas shall be deemed a qualified voter, provided, however, that the person is registered to vote and does not fall within any of a specific set of disqualifications. See Tex. Const. art. VI, § 2(a). Persons so disqualified are those under 18 years of age; those who have been determined mentally incompetent by a court, subject to such exceptions as the legislature may enact; and those convicted of any felony, again subject to such exceptions as the legislature may enact. See id. art. VI, § 1(a). Additionally, the legislature is directed to “enact laws to exclude from the right of suffrage persons who have been convicted of bribery, perjury, forgery, or other high crimes.” Id. art. VI, § 1(b). The legislature expressly is directed to “make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box,” as well as to “provide by law for the registration of all voters.” Id. art. VI, § 4.

*2 Statutory eligibility requirements have been codified in the Election Code, which provides that:

Tex. Elec. Code Ann. § 11.001 (Vernon 2003). Section 11.002 defines “qualified voter”:

In this code, “qualified voter” means a person who:

Id. § 11.002.

In order to be a resident of the state, one must satisfy the statutory definition of “residence.” Section 1.015 of the Election Code defines “residence”:

Id. § 1.015.

In order to register to vote, one must file an application with the voter registrar of the county in which the applicant desires to vote. Id. § 13.002. In order to file, one must satisfy the statutory eligibility requirements for registration, which track the definition of “qualified voter” found in section 11.002 with the additional requirement that the person “be a resident of the county in which application for registration is made.” Id. § 13.001(a)(5). Thus, a person who complies with and satisfies the requirements of sections 1.015, 11.001, 11.002, 13.001, and 13.002 of the Election Code is an “eligible voter.” See id. §§ 1.015, 11.001-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).

*3 In your second question you ask: “What is the law with regard to residency in the State of Texas as it relates to voter registration?” Request Letter, supra note 1, at 2.

As noted above, in order to register to vote, one must be a “resident” of the county in which one desires to vote. Residence for purposes both of registration and voting is defined to mean “domicile,” i.e., “one's home and fixed place of habitation to which one intends to return after any temporary absence.” Tex. Elec. Code Ann. § 1.015(a) (Vernon 2003). Residence must be determined in accordance with the common-law rules, as enunciated by the courts of this state, unless the code provides otherwise. See id. § 1.015(b). A person does not lose residence by leaving his home to go to another place for temporary purposes only; nor does a person acquire a residence in a place to which he has come for temporary purposes only and without the intention of making that place his home. See id. § 1.015(c)-(d).

In the leading Texas Supreme Court case of Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964), the court declared that the meaning of the term “residence” for voting purposes

Id. at 637 (citations omitted). See Slusher v. Streater, 896 S.W.2d 239, 243 (Tex. App.-Houston [1st Dist.] 1995, no writ); Alvarez v. Espinoza, 844 S.W.2d 238, 247 (Tex. App.-San Antonio 1992, writ dism'd w.o.j.); Guerra v. Pena, 406 S.W.2d 769, 776 (Tex. Civ. App.-San Antonio 1966, no writ); McBeth v. Streib, 96 S.W.2d 992 (Tex. Civ. App.-San Antonio 1936, no writ); see also Tex. Att'y Gen. Op. Nos. JC-0520 (2002), JM-611 (1986), JM-231 (1984).

Prior to Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), students in Texas were presumed by statute to have a domicile at the residence of their parents, not where they were enrolled at institutions of higher education. Whatley struck down the statutory presumption in former article 5.08(k) of the Election Code providing that “‘a student in a school, college, or university’ shall not be considered to have acquired a voting residence at the place where he lives while attending school ‘unless he intends to remain there and to make that place his home indefinitely after he ceases to be a student.”’ Whatley, 482 F.2d at 1231 (quoting former article 5.08(k) of the Election Code, see Act of May 19, 1967, 60th Leg., R. S., ch. 723, § 21, sec. 40 (art. 5.08), 1967 Tex. Gen. Laws 1858, 1879-80, repealed by Act of May 13, 1985, 69th Leg., R. S., ch. 211, § 1, sec. 1.015, 1985 Tex. Gen. Laws 802, 807) (substantive recodification of Texas Election Code, repealing former article 5.08 and enacting section 1.015). The court noted that the statutory presumption illegally treated student voters differently than non-student voters:

Whatley, 482 F.2d at 1233 (footnotes omitted). The court declared that the presumption violated the Equal Protection Clause of the 14th Amendment and struck down the provision.

Under current law, the determination regarding “residence” thus involves both physical presence and current intention of the applicant; if a student, like any other applicant, satisfies the requirements of section 1.015, that student is a “resident” of the county in which he seeks to register. The intention of the voter registration applicant is crucial to a proper determination of residence, and every person is strongly presumed to have “the right and privilege of fixing his residence according to his own desires.” McBeth, 96 S.W.2d at 995. For example, let us assume that two students, Student A and Student B, live in the same college dormitory. Student A, who is living in the dormitory and is therefore physically present for purposes of voter registration yet intends his residence to remain the same as that of his parents, can permissibly register to vote in the county of his parent's residence. See, e.g., Alvarez, 844 S.W.2d at 247 (by temporarily moving to Austin to attend school at the University of Texas at Austin, challenged voter did not lose his Frio County residence or acquire residence for voting purposes in Travis County). On the other hand, Student B, who is living in the same dormitory as Student A yet who intends that the dormitory be his residence for purposes of voter registration, can permissibly register to vote in the county where his dormitory is located. See, e.g., Whatley, 482 F.2d 1230 (student who was physically present in Denton County and intended to claim Denton County as his residence for purposes of voter registration lost residence in the county where his parents resided and acquired residence in Denton County). And the mere fact that an applicant claims a post office box as an address or that many applicants claim the same post office box as an address is not dispositive regarding the determination of residence. Indeed, depending upon the facts in each case, it might not even be relevant. See, e.g., Speights v. Willis, 88 S.W.3d 817 (Tex. App.-Beaumont 2002, no pet.) (voters who were physically present and intended county to be residence for purposes of voter registration, yet who claimed post office box numbers as addresses, satisfied statutory voter registration application requirements and, thereby, residence requirement).

*5 Without outlining all of the various fact situations that the courts have addressed in determining whether a voter is a “resident,” we can say that all applicants for registration, including students, must be subject equally to whatever presumptions or restrictions are imposed by law. See Dunn v. Blumstein, 405 U.S. 330 (1972). To illustrate the sorts of factors and practices that cannot be employed to determine “residence,” we examine the federal three-judge panel's injunction in United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), aff'd, Symm v. United States, 439 U.S. 1105 (1979) (hereinafter Texas), a case involving the very county that is the focus of your concern - Waller County. Though in a brief submitted to this office the Criminal District Attorney of Waller County seems to assert that the case only prohibited the use of a certain questionnaire in determining “residence” for purposes of voter registration,² the injunction issued in the case makes it clear beyond cavil that the court concluded that a variety of practices undertaken by the voter registrar violated the United States Constitution.

In Texas, a federal three-judge panel enjoined the Waller County Tax Assessor-Collector, who was the voter registrar, from refusing to register to vote students enrolled at Prairie View A&M University. Specifically, the panel enjoined the registrar from engaging in a variety of practices that the panel deemed violated the 26th Amendment to the United States Constitution, which provides that no right of citizens who are 18 years old or older to vote shall be denied or abridged on account of age.³ See U.S. Const. amend. XXVI, § 1.

The panel ordered that, inter alia, college students of Waller County must be registered and allowed to vote on the same basis and by application of the same standards and procedures as non-students, without reference to whether such students had dormitory addresses, whether or not they resided in Waller County prior to attending school, and whether or not they planned to leave Waller County upon graduation. See United States v. Texas, Civil Action No. 76-H-1681, Injunction Decree, 1 (S.D. Tex. 1978) (on file with Opinion Committee). The panel acknowledged that the registrar had the authority under the Election Code to make a factual determination as to whether each applicant to vote was a bona fide resident of Waller County; however, in making this factual determination, the panel declared that the registrar could not find that a person was a non-resident of Waller County for any of the following reasons:

Id. at 2.

The panel required that, if the registrar made a finding that a person was not a bona fide resident of Waller County, the determination must be made on the basis of tangible evidence, consisting of facts or factors other than the six factors listed above. See id. In addition, in the event that the registrar made a determination that any person who claims to be a resident of Waller County, and who had a Prairie View A&M University address, was not a bona fide resident of Waller County, the registrar must make a written record of the precise, exact tangible evidence upon which he relied in making his determination of non-residency. See id. All records of the type described in the previous sentence were required to be kept in legible form and in a single file in the Waller County Registrar's office, where such records could be inspected by the plaintiff in the cause or any other person having a legitimate interest in the examination of such records. Such records were required to be maintained for a period of five years after originally made. See id.

Additionally, students of Waller County were not to be subjected to the presumption contained in former article 5.08(k) of the Election Code or to any other presumption with regard to their voting residence. See id. 3. The registrar was ordered immediately to cease using the residence standard for students, which had been implemented by means of a questionnaire, to terminate the use of the questionnaire, and to henceforth register students on the basis of the information contained in the state-approved registration form, as was done elsewhere in Texas, unless the registrar had tangible, recordable evidence (consistent with Paragraph 2 of the decree) that such applicant was not a bona fide resident of Waller County. See id. 4. And the registrar was enjoined from subjecting Prairie View A&M students to any particular or discriminatory procedure not applied to non-students on a regular basis, such as, for example, causing students to visit his office and submitting students orally to the questioning previously contained in the questionnaire discussed in the court's Memorandum Opinion. See id.

We stress that the United States Supreme Court affirmed the three-judge panel's judgment in Symm v. United States, 439 U.S. 1105 (1979). Thus, clearly, in light of Whatley and Texas, students in Texas may no longer be subjected, whether by statute or by practice, to any presumption with respect to “residence” not also applied to all other voters in Texas.

With your third question, you ask about the authority of the local prosecutor to prevent someone from registering to vote or to prevent the voter registrar from acting on that application:

Request Letter, supra note 1, at 2.

The voter registrar is authorized by the Election Code to conduct an administrative procedure to determine and possibly challenge the eligibility of an applicant for registration to vote, subject to judicial review. See Tex. Elec. Code Ann. §§ 13.001-.146 (Vernon 2003 & Supp. 2004), 17.001-.008 (Vernon 2003). The Election Code also establishes an administrative procedure cancelling, by the registrar's initiative or that of another registered voter, a voter registration application that already has been approved, if the voter is no longer eligible. Id. §§ 16.001-.095 (Vernon 2003 & Supp. 2004). Adverse decisions rendered under chapter 16 are also subject to judicial review. Id. §§ 17.001-.008 (Vernon 2003). These provisions grant no role to a local prosecutor. Thus, we have found no statute granting local prosecutors the preemptive authority to prevent a person from filing an application to register to vote or the voter registrar from acting on that application. Local prosecutors do, however, have express authority to prosecute a person who knowingly makes a false statement on an application for voter registration.

Section 13.007 of the Election Code provides:

Id. § 13.007.⁴ An application for voter registration must contain substantially more than just a declaration of residence. Subsection (c) of section 13.002 sets forth the information that must be included on an application for voter registration:

Id. § 13.002(c) (Vernon Supp. 2004). Thus, knowingly providing any false information in answer to the above ten items of information violates section 13.007 of the Election Code.

Prosecution under section 13.007, by its terms, is not limited only to those instances in which a person already has cast a vote. Rather, the section creates an offense that may be prosecuted at any time its elements are met, whether before or after an election, subject of course to applicable statutes of limitations. We emphasize that it is not a criminal offense in this state if an applicant for voter registration believes, however mistakenly, that the applicant is a resident of the county in which the applicant seeks to vote. But see id. § 64.012 (voting or attempting to vote in an election when voter knows that the voter is ineligible to vote is criminal offense). However, knowingly making a false statement on an application for voter registration is a criminal offense.

Additionally, we note that chapter 273 of the Election Code confers general authority on both local prosecutors and the attorney general to investigate alleged criminal conduct “in connection with” an election. Section 273.001 provides in pertinent part that:

Id. § 273.001(a). Moreover, the local prosecutor and the attorney general have authority to conduct such an investigation in the absence of affidavits:

*9 Id. § 273.001(b). In this specific instance, the Criminal District Attorney of Waller County “has all the powers, duties, and privileges in Waller County that are conferred by law on county and district attorneys in the various counties and districts.” Tex. Gov't Code Ann. § 44.337 (Vernon Supp. 2004). Thus, the Criminal District Attorney of Waller County is conferred authority by Election Code chapter 273 to investigate, on his own initiative, whether criminal conduct occurred “in connection with an election.” Tex. Elec. Code Ann. § 273.001(b) (Vernon Supp. 2004).

Therefore, in answer to your third question, we conclude that local prosecutors are conferred no authority to prevent someone from registering to vote or to prevent voter registrars from acting on voter registration applications. We further conclude that local prosecutors may seek to investigate and prosecute possible offenses under section 13.007 of the Election Code any time that credible evidence of such fraud is brought to their attention or complaints are filed with their offices; local prosecutors are conferred general authority to investigate whether criminal conduct has occurred “in connection with an election” under chapter 273 of the Election Code. Id.

A person who complies with and satisfies the requirements of sections 1.015, 11.001, 11.002, 13.001, and 13.002 of the Texas Election Code is an “eligible voter”. See Tex. Elec. Code Ann. §§ 1.015, 11.001-.002, 13.001-.002 (Vernon 2003 & Supp. 2004).

The meaning of “residence” for purposes of voting and voter registration is governed by section 1.015 of the Texas Election Code. “Residence” is defined to mean “domicile,” i.e., one's home and fixed place of habitation to which one intends to return after any temporary absence. Id. § 1.015(a) (Vernon 2003). Residence must be determined in accordance with the common-law rules, as enunciated by the courts of this state, unless the code provides otherwise. See id. § 1.015(b). A person does not lose his residence by leaving his home to go to another place for temporary purposes only; nor does a person acquire a residence in a place to which he has come for temporary purposes only and without the intention of making that place his home. See id. § 1.015(c). Both bodily presence and current intention on the part of the applicant or voter are necessary to establish residence.

The intention of the voter registration applicant is crucial to a proper determination of residence, and every person is strongly presumed to have “the right and privilege of fixing his residence according to his own desires.” McBeth v. Streib, 96 S.W.2d 992, 995 (Tex. Civ. App.-San Antonio 1936, no writ). For example, one student who is living in a dormitory, and is therefore physically present for purposes of voter registration, yet who intends his residence to remain the same as that of his parents, can permissibly register to vote in the county of his parent's residence. On the other hand, another student living in the same dormitory who intends that the dormitory be his residence for purposes of voter registration, can permissibly register to vote in the county where the dormitory is located. And the mere fact that an applicant claims a post office box as an address or that many applicants claim the same post office box as an address is not dispositive regarding the determination of residence.

*10 Chapter 13 of the Texas Election Code sets forth a detailed administrative procedure to be conducted by the voter registrar governing the submission and approval of voter registration applications. Chapter 16 of the Texas Election Code sets forth a detailed administrative procedure to be conducted by the voter registrar governing the cancellation, whether through the initiative of the registrar or any registered voter, of voter registration applications already approved. Chapter 17 of the Texas Election Code provides for judicial review of any administrative decision made under those chapters. No section of any of these chapters affords an official role to local prosecutors. Therefore, local prosecutors have no authority to prevent any voter registrar from performing the registrar's duties as provided by law. However, local prosecutors are authorized to investigate and prosecute whenever credible evidence is brought to their attention, or a complaint is filed regarding alleged violations of section 13.07 of the Texas Election Code, which makes it a criminal offense to submit false or fraudulent information on a voter registration application.